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

Case No. 2017 NY Slip Op 08027 [155 AD3d 900]
Regular Panel Decision
Nov 15, 2017

Poalacin v. Mall Properties, Inc.

The plaintiff, Nelson Poalacin, was injured when he fell from a defective ladder while working at a retail property undergoing refurbishment. He sued multiple defendants, including the property owners (Mall Properties, Inc., KMO-361 Realty Associates, LLC, The Gap, Inc.), the general contractor (James Hunt Construction), and subcontractors (Weather Champions, Ltd., APCO Insulation Co., Inc.), alleging violations of Labor Law §§ 240 (1), 200, and 241 (6), as well as common-law negligence. The Supreme Court initially denied Poalacin's motion for summary judgment on Labor Law § 240 (1) and later granted the defendants' motions to dismiss the complaint. On appeal, the Appellate Division reversed the Supreme Court's orders, granting Poalacin summary judgment on the Labor Law § 240 (1) claim and denying the defendants' motions to dismiss the other Labor Law claims. The court also made declarations regarding indemnification and insurance coverage between the parties, finding Harleysville Insurance's policy was excess to Netherlands Insurance Company's policy, and remitted the matter for judgment entry.

Labor LawConstruction AccidentWorkplace SafetyLadder FallSummary JudgmentIndemnificationInsurance DisputesAdditional InsuredCommon-Law NegligenceThird-Party Action
References
37
Case No. E2020-00375-COA-R3-CV
Regular Panel Decision
Apr 27, 2021

Toryiana Louisa Soto v. Presidential Properties, LLC

This case involves claims brought under the Tennessee Consumer Protection Act and the Tennessee Real Estate Broker License Act, along with other related claims concerning real estate transactions. The plaintiffs, Toryina and Luis Soto, and John and Tina Colbaugh, sued Presidential Properties, LLC and Kenneth Gross for fraud, breach of contract, and violations of the aforementioned acts. Kenneth Gross, acting as an unlicensed real estate broker, improperly advertised properties he did not own and misled the Sotos. The trial court found in favor of the plaintiffs, awarding treble damages and attorney's fees, and restored the Bays View property title to the Sotos. The Court of Appeals affirmed the trial court's conclusions regarding fraud and the violation of the Real Estate Broker License Act but vacated the award of attorney's fees due to insufficient explanation, remanding for further findings.

Real Estate FraudConsumer Protection ActBroker License ActBreach of ContractTreble DamagesAttorney's FeesAppellate ReviewPro Se LitigantExpert Witness ExclusionStatutory Interpretation
References
30
Case No. 03-15-00314-CV
Regular Panel Decision
Aug 07, 2015

California Insurance Guarantee Association, Oklahoma Property and Casualty Insurance Guaranty Association, and Texas Property and Casualty Insurance Guaranty Association v. Hill Brothers Transportation, Inc.

The appellants, California Insurance Guarantee Association (CIGA), Oklahoma Property and Casualty Insurance Guaranty Association (OPCIGA), and Texas Property and Casualty Insurance Guaranty Association (TPCIGA), collectively "Guaranty Associations," are appealing a summary judgment granted in favor of the appellee, Hill Brothers Transportation, Inc. ("Hill Bros."). The suit was filed on March 31, 2009, alleging Hill Bros. failed to reimburse the Guaranty Associations for payments of workers' compensation benefits and claim handling expenses within the deductible limits of a policy issued by the insolvent Legion Insurance Company ("Legion"). The District Court granted summary judgment to Hill Bros. based on the statute of limitations, ruling that the cause of action accrued on April 1, 2002. The Guaranty Associations argue that the accrual date is incorrect, as their statutory obligations had not been triggered, payments had not been made, and demand for reimbursement had not occurred by that date. They also contend that their compliance with Pennsylvania law (the "Pennsylvania Act") in seeking reimbursement through Legion in Liquidation constitutes a mitigating circumstance for any delay, making reasonableness a fact question. Furthermore, they assert the policy was a continuing contract, and the statute of limitations should not have accrued until full performance on April 28, 2009. Alternatively, they argue that claims for deductible payments made within four years of filing suit (March 31, 2005) are not barred.

Workers' CompensationInsurance Guaranty AssociationStatute of LimitationsBreach of ContractDeductible ReimbursementInsolvencyInsurance PolicyContinuing ContractPennsylvania ActTravis County
References
21
Case No. MISSING
Regular Panel Decision

Gilbert Wheeler, Inc. v. Enbridge Pipelines (East Texas), L.P.

This case addresses the proper method for compensating a landowner for the destruction of trees on their property. Gilbert Wheeler, Inc. (Wheeler) sued Enbridge Pipelines, L.P. (Enbridge) for breach of contract and trespass after Enbridge destroyed several hundred feet of trees while constructing a pipeline, violating an agreement to use an underground boring method. The Texas Supreme Court clarifies the application of the temporary-versus-permanent injury distinction to real property damages, holding it applies to both tort and contract claims and is a question of law for the court. The Court confirms two exceptions to general damage rules: the economic feasibility exception, deeming the injury permanent due to restoration costs significantly exceeding market value diminution, and the intrinsic value of trees exception, allowing recovery for ornamental and utilitarian value even with nominal market value loss. The Supreme Court reversed the court of appeals' judgment and remanded the case to address remaining issues consistent with this opinion.

Real Property DamagesBreach of ContractTrespassTree DestructionTemporary vs. Permanent InjuryDamages CalculationEconomic Feasibility ExceptionIntrinsic Value of TreesAppellate ReviewJury Instructions
References
29
Case No. 2021 NY Slip Op 04540
Regular Panel Decision
Jul 28, 2021

Garcia v. Emerick Gross Real Estate, L.P.

David Garcia, an employee of Temperature Systems, Inc. (TSI), sustained personal injuries after falling from a ladder supplied by Emerick Gross Real Estate, L.P. (Emerick) while working at one of Emerick's properties. Garcia sued Emerick alleging violations of Labor Law §§ 200, 240 (1), and 241 (6), and common-law negligence, prompting Emerick to file a third-party action against TSI for contractual indemnification. The Supreme Court, Nassau County, denied both Garcia's and Emerick's motions for summary judgment, and TSI's cross-motion for summary judgment dismissing the third-party complaint. Additionally, the Supreme Court granted Garcia's cross-motion for discovery sanctions against Emerick for spoliation of evidence, determining that Garcia was entitled to a negative inference at trial due to the disposal of the ladder. The Appellate Division, Second Department, affirmed the Supreme Court's order in its entirety, concluding that triable issues of fact existed regarding whether Garcia was a recalcitrant worker and the sole proximate cause of his injuries, and whether the alleged contractual indemnification provision was enforceable.

Personal InjuryLabor LawElevation-related HazardsSummary JudgmentContractual IndemnificationSpoliation of EvidenceNegative InferenceRecalcitrant WorkerProximate CauseSafe Place to Work
References
18
Case No. MISSING
Regular Panel Decision
Jun 03, 1966

Crusade for Christ, Inc. v. Town of New Lebanon

The appellant, an unnamed religious corporation, sought tax exemption for its real property in the Town of New Lebanon under Real Property Tax Law section 420. The property, known as 'Lebanon Boys’ Village,' was used for various religious activities, an unlicensed school, and an orphanage. The Referee dismissed the complaint, finding that the corporation's certificate did not authorize operating a school and failed to obtain necessary consents from the Commissioner of Education and the State Board of Social Welfare. The court affirmed the Referee's decision, ruling that the property was not primarily used for statutorily authorized activities. The court concluded that granting the exemption would subsidize improper corporate functions and lacked the public benefit contemplated by the statute.

Real Property Tax Law § 420Tax ExemptionReligious CorporationMembership Corporations LawDeclaratory JudgmentProperty UseUnlicensed SchoolOrphanage ActivitiesCorporate AuthorizationConsent Requirements
References
2
Case No. MISSING
Regular Panel Decision
Aug 07, 2007

Rosenblatt v. Wagman

Paul B. Rosenblatt, a sandblaster, was injured after a ladder slipped while he was painting railings at Terry Wagman's home. He and his wife sued Terry Wagman and the property owners (James M. Wagman and Joanne Z. Wagman) alleging negligence and violations of Labor Law §§ 240, 241, and 200, as well as Real Property Law § 235-b. The Supreme Court initially dismissed claims under Labor Law §§ 240, 241, and Real Property Law § 235-b, but allowed negligence and Labor Law § 200 claims to proceed. On cross-appeals, the higher court found that defendants qualified for the homeowner's exemption under Labor Law §§ 240 and 241. Additionally, the plaintiff's acknowledged awareness of the ladder's instability and his extensive experience precluded liability for negligence and under Labor Law § 200. Consequently, the defendants' motions for summary judgment were granted in full, and the complaint was dismissed.

NegligenceLabor LawHomeowner's ExemptionSummary JudgmentLadder AccidentPersonal InjuryPremises LiabilityWorker SafetyAppellate DecisionContributory Negligence
References
11
Case No. 2015 NY Slip Op 09254
Regular Panel Decision
Dec 16, 2015

Guevera v. Simon Property Group, Inc.

Ignacio Guevera, an employee, suffered personal injuries after falling from a ladder due to an electrical shock while performing routine maintenance in a retail store. He sued Simon Property Group, Inc. and Pacific Sunwear Stores, Corp., alleging violations of Labor Law §§ 200, 240 (1), and 241 (6), and common-law negligence. The Supreme Court denied Guevera's motion for summary judgment on Labor Law § 240 (1) liability and granted the defendants' cross-motion to dismiss the complaint. The Appellate Division affirmed this decision, finding Guevera's activity was routine maintenance, not covered by Labor Law §§ 240 (1) or 241 (6). Furthermore, the court determined the defendants lacked notice of the loose cable for the Labor Law § 200 and common-law negligence claims. Another plaintiff's appeal was dismissed as abandoned.

Personal InjuryFall from LadderLabor LawSummary JudgmentRoutine MaintenanceElectrical ShockPremises LiabilityAppellate DivisionWorkplace Safety
References
10
Case No. 2024 NY Slip Op 00194 [223 AD3d 747]
Regular Panel Decision
Jan 17, 2024

Ochoa v. JEM Real Estate Co., LLC

Carlos Ochoa, the plaintiff, sustained personal injuries after falling from an A-frame ladder while working at a building owned by JEM Real Estate Co., LLC, and leased by Bobwhite Counter, LLC. He commenced an action alleging violations of Labor Law §§ 240 (1) and 241 (6). The Supreme Court granted Ochoa's motion for summary judgment on the issue of liability under Labor Law § 240 (1) and denied the defendants' cross-motion to dismiss the Labor Law claims. The Appellate Division, Second Department, affirmed the Supreme Court's order, finding that the plaintiff established a prima facie case of a defective ladder in violation of Labor Law § 240 (1) and that the defendants failed to raise a triable issue of fact. The court also upheld the denial of summary judgment dismissing the Labor Law § 241 (6) claim due to unresolved factual issues regarding Industrial Code violations.

Personal InjuryLabor LawSummary JudgmentAppellate ReviewLadder AccidentWorkplace SafetyConstruction AccidentStatutory ViolationProximate CauseNondelegable Duty
References
14
Case No. 131 AD3d 553
Regular Panel Decision
Aug 19, 2015

Assevero v. Hamilton & Church Properties, LLC

Hugo Assevero was injured falling from an unsecured ladder while working on a building renovation project owned by Hamilton & Church Properties, LLC. He commenced an action alleging violations of Labor Law sections, and Hamilton initiated a third-party action against Castle Construction Group. The Supreme Court initially granted Hamilton's cross-motion for summary judgment, dismissing the Labor Law claims based on the homeowner's exemption. On appeal, the Appellate Division modified the Supreme Court's order, ruling that the building did not qualify for the homeowner's exemption due to its mixed commercial and multi-residential use. Consequently, Hamilton's cross-motion for summary judgment on Labor Law §§ 240 (1) and 241 (6) was denied. The Appellate Division affirmed the denial of Assevero's motion for summary judgment on Labor Law § 240 (1) and Castle's cross-motion for summary judgment on indemnification claims.

Labor LawHomeowner's ExemptionSummary Judgment MotionLadder FallConstruction AccidentPersonal Injury ClaimCorporate Property OwnershipContractual IndemnificationCommon-Law IndemnificationThird-Party Litigation
References
25
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