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Case Law Database

Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. 2016 NY Slip Op 00623 [136 AD3d 410]
Regular Panel Decision
Feb 02, 2016

Marzec v. City of New York

Plaintiff Richard Marzec alleged he was assaulted by a worker at a construction site while walking on a pedestrian walkway. The assailant, though employed by a security company, was performing flagman duties for a subcontractor. Marzec sued the landowners, Amsterdam & 76th Street Associates, LLC and Related Amsterdam & 76th Street Associates, LLC, and the construction manager, Monadnock Construction, Inc., asserting claims including premises liability, respondeat superior, negligent hiring, and negligent supervision. On appeal, Marzec focused on whether Monadnock could be held vicariously liable as a special employer. The court affirmed the dismissal of the claim, finding that Monadnock's supervisory powers over the flagman's duties were only general and insufficient to establish a special employment relationship, thus precluding vicarious liability.

Vicarious LiabilitySpecial EmployerNegligent SupervisionNegligent HiringPremises LiabilityConstruction Site AccidentAssaultSummary JudgmentAppellate DivisionControl Over Work
References
3
Case No. MISSING
Regular Panel Decision

Lucas v. KD Development Constuction Corp.

The injured plaintiff, a construction worker, was struck by a car while acting as a flagman at a construction site. Defendants KD International Development Corp., the general contractor, and Sanford Tower Associates, the owner, appealed an order denying their motion for summary judgment to dismiss claims under Labor Law §§ 200 and 241 (6). The appellate court modified the order, granting summary judgment to the defendants for the Labor Law § 241 (6) claim based on 12 NYCRR 23-1.29, finding they complied with flagman requirements. However, the court affirmed the denial of summary judgment for the Labor Law § 241 (6) claim concerning 12 NYCRR 23-1.30 (lighting), as defendants failed to show prima facie compliance, and for the Labor Law § 200 claims due to existing questions of fact regarding supervision and control.

Personal InjuriesConstruction SiteSummary JudgmentLabor LawFlagman DutyIndustrial CodeLighting SafetyNegligenceAppellate DecisionPremises Liability
References
6
Case No. ADJ6531287
Regular
Apr 07, 2009

Corey Nakatani vs. Los Alamitos Racetrack, Tristar Management

The Workers' Compensation Appeals Board denied the applicant's petition for removal, which sought to rescind an order taking the case off calendar for further medical discovery. The applicant argued that the defendant waived objections by not timely objecting to his readiness to proceed and that their subsequent objection lacked good cause. The Board found no substantial prejudice to the applicant from the delay, especially since he had returned to work and had prior relevant cases. Therefore, the petition was denied to allow both parties to adequately develop the record.

Petition for RemovalWCJDeclaration of Readiness to ProceedWCAB Rule 10416Treating PhysicianIndustrial InjuryPermanent and StationaryMandatory Settlement ConferenceSubstantial PrejudiceIrreparable Harm
References
4
Case No. ADJ1394617 (SDO 0360761) ADJ3352842 (SDO 0360836)
Regular
Aug 23, 2012

GAETANO DELISA vs. DEL MAR THOROUGHBRED CLUB, ZENITH INSURANCE CO.

This case involves applicant Gaetano Delisa's claim for workers' compensation benefits, alleging injury to his respiratory system and other areas due to exposure to a synthetic racetrack surface. The Workers' Compensation Appeals Board affirmed the judge's prior order finding no injury arising out of and in the course of employment. This decision was based on substantial medical evidence from qualified medical evaluators who opined that applicant's conditions were not industrially caused, and the applicant failed to meet his burden of proof. Applicant presented no medical evidence contradicting these expert opinions, thus the claim was denied.

Workers' Compensation Appeals BoardPetition for ReconsiderationJoint Findings and OrderInjury AOE/COEPolytrackSecurity OfficerRespiratory SystemPqmeToxicologyOccupational Medicine
References
3
Case No. MISSING
Regular Panel Decision
Mar 24, 1977

Claim of Crayton v. Riverhead Expo Corp.

Claimant, a part-time flagman for Riverhead Expo Corporation, sustained severe injuries after being struck by a race car while on duty. Despite signing a release designating him an independent contractor, the Workers’ Compensation Board determined an employer-employee relationship existed, citing evidence of the corporation's hiring, firing, wage payment, and supervision rights. Appellants contested this finding and the calculation of the average weekly wage. The appellate court affirmed the Board's decision, concluding that substantial evidence supported both the employer-employee relationship and the proper determination of the claimant’s average weekly wage.

Workers' CompensationEmployer-Employee RelationshipIndependent ContractorAverage Weekly WageSupervision and ControlFactual DeterminationSubstantial EvidenceRacetrack FlagmanAppellate ReviewBoard Decision Affirmed
References
4
Case No. MISSING
Regular Panel Decision
Jul 20, 2009

Simoes v. City of New York

Plaintiff, a flagman, sustained injuries when a manlift fell over while he was in its aerial basket, attempting to maneuver it over a curb after it malfunctioned. The incident occurred when a foreman attempted to push the manlift with another vehicle. The Supreme Court, Bronx County, dismissed the Labor Law § 240 (1) claim, ruling that the plaintiff's duties did not involve elevation-related risks. However, the court denied the defendant's motion to dismiss the Labor Law § 241 (6) cause of action, citing triable issues regarding the applicability of Industrial Code provisions 12 NYCRR 23-9.6 (c) (3) and (e) (8) and the plaintiff's presence in the construction area. This order was unanimously affirmed on appeal.

FlagmanManlift AccidentLabor Law § 240(1)Labor Law § 241(6)Industrial CodeConstruction AccidentSummary JudgmentAppellate AffirmationElevation RisksTraffic Director
References
4
Case No. MISSING
Regular Panel Decision

Tripp v. Bloodworth

Solomon R. Bloodworth, a blueprint man for Fluor Corporation, Ltd., sued M. R. Tripp, a subcontractor, for injuries sustained when Tripp's driver negligently backed heavy equipment over him. The jury found Tripp's driver negligent for failing to keep a proper lookout, control, and operate without a flagman. The trial court entered a judgment of $30,000 for Bloodworth and intervenor Liberty Mutual Insurance Company. Tripp appealed, raising issues regarding the refusal of special issues and instructions, alleged improper injection of insurance, and excessive damages. The appellate court affirmed the trial court's judgment, finding no reversible error and determining that the damage award was not excessive.

Personal InjuryNegligenceWorkplace AccidentSubcontractor LiabilityJury VerdictProximate CauseAppellate ReviewDamagesRemittiturEvidence Sufficiency
References
17
Case No. 06-09-00009-CV
Regular Panel Decision
Feb 26, 2010

Walker & Associates Surveying, Inc., and Dennis Walker, D/B/A Walker and Associates Construction v. Royce Roberts

Royce Roberts hired Walker & Associates Surveying, Inc. (WAS) and Dennis Walker d/b/a Walker and Associates Construction (WAC) to extend a horse training racetrack, leading to a dispute over construction requirements. WAS filed a mechanic's lien and suit, while Roberts counterclaimed for fraudulent lien and usurious interest. The appellate court partially affirmed the usury finding under Texas Finance Code Section 305.003 but remanded damages for recalculation. The fraudulent lien summary judgment was reversed and remanded due to a fact question on intent to cause financial harm, and the claim for usury under Section 305.004 was reversed. The court otherwise affirmed the judgment, including the jury's findings on WAC's breach of contract and quantum meruit.

Horse Racetrack ConstructionMechanic's LienFraudulent LienUsury LawTexas Finance CodeQuantum MeruitBreach of ContractSummary JudgmentAppellate ReviewSufficiency of Evidence
References
65
Case No. MISSING
Regular Panel Decision

Dockside Terminal Services v. Port Houston Marine, Inc.

Ralph Barrios, an employee of Port Houston, was injured and subsequently sued Dockside for his injuries. Dockside then filed a third-party claim for indemnity against Port Houston, alleging a breach of an implied oral contract requiring Port Houston to provide a flagman for crane operations. The trial court granted Port Houston's motion for summary judgment, citing sections 905(a) and (b) of the Longshoremen’s and Harbor Workers’ Compensation Act. However, the appellate court reversed this decision, clarifying that Section 905 does not bar contract-based indemnity suits by a non-vessel third party against an employer. The court concluded that a genuine issue of material fact existed regarding the implied contractual provision, thus remanding the cause for trial.

Longshoremen’s and Harbor Workers’ Compensation ActThird-Party ClaimContractual IndemnityImplied ContractSummary JudgmentAppellate ReversalEmployer LiabilityMaritime LawCrane OperationFlagman
References
5
Case No. MISSING
Regular Panel Decision

Claim of McKenzie v. New York Jockey Injury Compensation Fund

Claimant, an exercise rider at Belmont Racetrack, suffered pelvic injuries in December 2003 while working a horse. Despite an expired license, a Workers’ Compensation Law Judge (WCLJ) established his case and determined he was a covered employee of the New York Jockey Injury Compensation Fund, holding the Fund responsible for medical treatment. The Workers’ Compensation Board upheld this decision. The Appellate Division affirmed, referencing *Matter of Adames v New York Jockey Injury Compensation Fund, Inc.* (15 AD3d 696 [2005]), which established that an exercise rider is a covered employee of the Fund under relevant Workers’ Compensation Law and Racing, Pari-Mutuel Wagering and Breeding Law provisions, irrespective of license expiration. The court found the Fund’s remaining contentions lacked merit.

Exercise RiderWorkers' CompensationJockey Injury Compensation FundExpired LicenseCovered EmployeeThoroughbred RacingPelvic InjuryAppellate DecisionBoard DecisionStatutory Interpretation
References
1
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