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

Case No. ADJ2519091 (LAO 0824930) ADJ4160066 (LAO 0824931) ADJ188382 (LAO 0828971)
Regular
Aug 18, 1941

MARIA MARXUACH vs. WESTIN BONAVENTURE HOTEL, ZURICH NORTH AMERICAN INSURANCE

The Workers' Compensation Appeals Board denied reconsideration in this case, upholding the judge's decision. Discovery closed by operation of law on September 12, 2007, and the applicant's attorneys failed to demonstrate due diligence in listing crucial medical reports as exhibits prior to this closure. Despite numerous continuances and attempts to amend the exhibit list, discovery was never formally reopened. The Board adopted the judge's reasoning that the applicant did not establish why the exhibits could not have been presented with reasonable diligence before discovery closed.

Mandatory Settlement ConferencePre-trial conference statementdiscovery closureadministrative law judgePetition for Reconsiderationreopen discoverydue diligenceexhibition listWCJ reportWorkers' Compensation Appeals Board
References
0
Case No. 85-00738
Regular Panel Decision

People v. Watt

This case, on remittitur from the Court of Appeals, addresses whether five-month time periods alleged in an indictment for sexual abuse crimes against a minor (victim NB) were reasonably specific to provide the defendant, James Watt, with adequate notice to prepare a defense. The Court applies the People v Morris test, examining factors such as prosecutorial diligence, victim's age (3-9 years old), the nature of the widespread abuse in an illegal day-care center, and the defendant's threats that prevented early disclosure. Despite the lack of specific dates, the Court finds no intentional nondisclosure or lack of diligence by the prosecution. Given the circumstances, including the defendant's living and working at the crime scene and the victims' inability to particularize dates, the Court concludes that the five-month time allegations were reasonably precise. Therefore, the defendant's convictions on specific counts of rape and sodomy are affirmed.

Child sexual abuseIndictment specificityTime allegationsDue process noticeAlibi defenseProsecutorial diligenceChild victim testimonyDay-care center crimesAppellate reviewRemittitur
References
28
Case No. 2020 NY Slip Op 03294 [184 AD3d 223]
Regular Panel Decision
Jun 11, 2020

Matter of Mauser

Marc R. Mauser, an attorney, was publicly censured by the Appellate Division, First Department, for professional misconduct. The Attorney Grievance Committee initiated disciplinary action against him for neglecting a client's personal injury case, failing to communicate for approximately 18 months, and making misrepresentations to the client, mediator, and the Committee regarding the case status and reasons for delays. Mauser also failed to diligently finalize a settlement and disburse funds promptly. The parties reached a joint agreement for discipline by consent, stipulating to violations of several Rules of Professional Conduct, including neglect of a legal matter, failure to promptly comply with client requests for information, failure to act with reasonable diligence, inadequate supervision of staff, and engaging in dishonest conduct. Despite aggravating factors, mitigating factors such as no prior discipline and acceptance of responsibility led to the agreed-upon sanction of public censure, which the Court granted.

Attorney disciplineprofessional misconductneglect of dutyfailure to communicatemisrepresentationpublic censureRules of Professional Conductsettlement delayclient communicationsupervisory failures
References
3
Case No. MISSING
Regular Panel Decision

Diaz v. Michigan Logistics Inc.

Plaintiffs (Johanna Diaz, et al.) sued Michigan Logistics Inc. d/b/a Diligent Deliveries, Northeast Logistics, Inc. d/b/a Diligent Deliveries (collectively, "Diligent"), and Parts Authority Inc. for alleged violations of the FLSA and NYLL, claiming misclassification as independent contractors and denial of minimum wage and overtime. Defendants moved to compel arbitration, citing owner-operator agreements with arbitration clauses. Plaintiffs opposed, arguing they were exempt from the FAA as transportation workers and that Parts Authority, a nonsignatory, could not compel arbitration. The court, presided by Judge Wexler, granted the defendants' motion, finding that even if the FAA did not apply, New York arbitration law favored arbitration and that Parts Authority could compel arbitration under equitable estoppel. Consequently, the Opt-in Plaintiffs' claims were dismissed without prejudice, and the case was stayed pending arbitration.

Fair Labor Standards ActNew York Labor LawArbitrationIndependent Contractor ClassificationWage and Hour ClaimsOvertime CompensationClass Action WaiverCollective Action WaiverFederal Arbitration ActEquitable Estoppel
References
22
Case No. MISSING
Regular Panel Decision

Seemann v. Sterling Insurance

Plaintiff Seemann, while at work in New Jersey, injured a co-worker with a paintball. Four months later, advised by the co-worker's attorney, Seemann notified Sterling Insurance, his homeowner's insurer in Schoharie County. Sterling Insurance disclaimed coverage due to delayed notice. The Supreme Court found Seemann's belief of no coverage justifiable and his delay reasonable, obligating Sterling Insurance to defend and pay. The Appellate Division affirmed, concluding that Seemann's good-faith belief that his homeowner's policy did not cover an off-premises incident was reasonable, and he acted diligently upon receiving the attorney's letter, thereby providing a reasonable excuse for the delay in notice.

Homeowner's InsuranceCoverage DisputeNotice RequirementsGood-Faith BeliefOff-Premises InjuryDeclaratory JudgmentAppellate ReviewReasonableness of DelayInsurance Policy InterpretationPaintball Incident
References
3
Case No. MISSING
Regular Panel Decision

Galarza v. American Home Assurance Co.

Lorri Galarza sued her employer, American Home Assurance Company (AHAC), alleging workplace sexual harassment and retaliatory discharge under Title VII of the Civil Rights Act and the New York Executive Law. Galarza claimed a co-worker, Marc Kaplan, sexually harassed her, and that she was fired after reporting the harassment to management. AHAC moved for summary judgment, asserting it had a reasonable complaint procedure and that Galarza's termination was due to poor job performance and insubordination, not retaliation. The court found that AHAC provided a reasonable avenue for complaint and made diligent efforts to investigate. Furthermore, the court concluded that Galarza failed to demonstrate that AHAC's stated reasons for her termination were merely a pretext for discrimination. Therefore, AHAC's motion for summary judgment was granted, dismissing Galarza's claims.

sexual harassmentretaliatory dischargeTitle VIIsummary judgmenthostile work environmentemployee conductperformance deficienciesdiscrimination claimsfederal civil procedure
References
21
Case No. 2007 NY Slip Op 30531(U)
Regular Panel Decision
Apr 05, 2007

Schirmer v. Athena-Liberty Lofts, LP

This case is an appeal from an Order of the Supreme Court, New York County, regarding a personal injury action. The plaintiff, a worker at a construction site, sustained injuries, leading to the site owner, Lofts, settling the claim after being found liable under Labor Law § 240 (1). Lofts then pursued indemnity claims against lighting contractor HP and the plaintiff's employer, Burgess. The Appellate Court modified the lower court's decision, vacating the finding that Lofts' settlement amount was reasonable due to Lofts' failure to properly demonstrate reasonableness and its mischaracterization of waiver arguments by HP and Burgess. The Court also affirmed the denial of HP's motion for summary judgment, citing unresolved factual issues concerning inadequate lighting as a cause of the accident.

Personal InjuryConstruction Site AccidentSummary JudgmentIndemnity ClaimLabor Law § 240(1)Appellate DivisionThird-Party ActionSettlement ReasonablenessCross ClaimsInadequate Lighting
References
4
Case No. ADJ8766821
Regular
Oct 03, 2016

PARAMJIT KAINTH vs. KEVIN'S PAINTING AND CONSTRUCTION, a partnership, KEVIN SINGH aka KULDIP SINGH, SEE SINGH, DIRECTOR OF INDUSTRIAL RELATIONS AS ADMINISTRATOR FOR THE UNINSURED EMPLOYERS BENEFITS TRUST FUND

This case involves defendants Kevin's Painting and Construction and Kevin Singh seeking reconsideration of a prior dismissal of their petition. The Board dismissed the current petition as an impermissible successive filing. Previously, their initial petition for reconsideration was dismissed as untimely because it was filed 13 days late, and they failed to diligently order transcripts needed for their appeal. Even if not successive, the current petition would be denied on its merits for the same reasons of untimeliness and lack of diligence.

Successive petitionPetition for reconsiderationUntimely filingDismissalWorkers' Compensation Appeals BoardTranscript request delayDiligenceLabor Code § 5903California Code of Regulations § 10859Uninsured Employers Benefit Trust Fund
References
1
Case No. LBO 0327008, LBO 0327009
Regular
Jul 12, 2007

DANIEL AVONCE vs. SUN SWEEPING SERVICE, NAICC, TRISTAR RISK MANAGEMENT

The Workers' Compensation Appeals Board denied reconsideration of a decision that disallowed a lien for medical treatment provided to an applicant, finding that the treatment was not for an industrially related injury. The lien claimant failed to demonstrate industrial injury to body parts beyond the applicant's right thumb, did not provide sufficient evidence, and failed to exercise reasonable diligence in attempting to secure the applicant's testimony. The Board adopted the reasoning of the WCJ, who found the lien claimant's arguments regarding procedural errors and due process violations to be without merit.

WORKERS' COMPENSATION APPEALS BOARDLien ClaimantPetition for ReconsiderationWCJFindings of Fact and Orderindustrial injuryreimbursementabuse of discretionHamilton v. Lockheeddue process
References
3
Case No. MISSING
Regular Panel Decision

In re S.H.

The Onondaga County Department of Social Services filed a motion requesting that reasonable efforts to reunite a child, born in August 2002 and removed from home in February 2003, with his parents were not required. The father had been convicted of a sex offense against a half-sibling, and his parental rights to another half-sibling were terminated. Both parents were found to have neglected, severely abused, and repeatedly abused the subject child. The mother admitted knowing about the sexual abuse but failed to intervene. The court found that the Department met its burden of proof by clear and convincing evidence that the parents subjected the child to aggravating circumstances and failed to demonstrate that reunification was in the child's best interests. Consequently, the motion to dispense with reunification efforts was granted.

Child NeglectSevere AbuseRepeated AbuseParental Rights TerminationSexual OffenseAggravated CircumstancesFamily Court ActSocial Services LawReunification EffortsFoster Care
References
2
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