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

Case No. 2021 NY Slip Op 02391 [193 AD3d 932]
Regular Panel Decision
Apr 21, 2021

Matter of Zamir F. (Ricardo B.)

The Administration for Children's Services appealed an order from the Family Court, Kings County, which had dismissed petitions alleging that Ricardo B. neglected Zamir F. through sexual abuse and derivatively neglected his other children, Elijah B., Jordan B., Jeremiah B., and Messiah B. The Appellate Division, Second Department, reversed the Family Court's order. It found that the petitioner had sufficiently established neglect and derivative neglect by a preponderance of the evidence, concluding that the testimony of the petitioner's child sexual abuse expert reliably corroborated Zamir's out-of-court statements. The court also determined that the Family Court had erred in its credibility assessment, particularly in preferring the father's expert's testimony. The matter was remitted to the Family Court for a dispositional hearing and the issuance of a dispositional order.

Child NeglectSexual AbuseDerivative NeglectFamily Court Act Article 10Corroboration of Child StatementsExpert TestimonyCredibility AssessmentAppellate ReviewParental DutiesRisk of Harm
References
8
Case No. 2018 NY Slip Op 01255 [158 AD3d 565]
Regular Panel Decision
Feb 22, 2018

Pena v. Jane H. Goldman Residuary Trust No. 1

Juan Pena, an injured worker, sued Jane H. Goldman Residuary Trust Number 1 and Sol Goldman Investments, LLC (SGI) under Labor Law § 240 (1) after sustaining injuries from a fall off an unsecured and wobbling ladder. The Supreme Court, Bronx County, initially granted Pena partial summary judgment on the issue of liability against SGI. SGI appealed this decision. The Appellate Division, First Department, affirmed the lower court's ruling, finding that Pena's deposition testimony sufficiently established his entitlement to judgment as a matter of law. The court concluded that SGI failed to raise a triable issue of fact, particularly regarding the provision of adequate safety devices or whether Pena was the sole proximate cause of the accident.

Summary judgmentLabor Law § 240(1)Ladder accidentUnsecured ladderFall from heightConstruction site accidentAppellate decisionPrima facie caseTriable issue of factProximate cause
References
4
Case No. 2014 NY Slip Op 05524 [119 AD3d 916]
Regular Panel Decision
Jul 30, 2014

Pena v. Varet & Bogart, LLC

The plaintiff, Augustin Pena, was injured after falling from a 20-foot ladder while washing windows at a four-story hostel owned by Varet and Bogart, LLC, and operated by First Consul Development, LLC. He subsequently commenced an action alleging a violation of Labor Law § 240 (1). The Supreme Court initially granted the defendants' motion for summary judgment dismissing this cause of action and denied the plaintiff's cross-motion for summary judgment on the issue of liability. On appeal, the Appellate Division, Second Department, modified the Supreme Court's order. The appellate court denied the defendants' motion for summary judgment, concluding that they failed to establish, prima facie, that Pena's activity was not "cleaning" under Labor Law § 240 (1), thereby reversing that part of the lower court's decision. However, it affirmed the denial of the plaintiff's cross-motion for summary judgment, as triable issues of fact remained regarding whether his activity was covered by the statute.

Personal InjuryFall from LadderWindow WashingRoutine MaintenanceElevated Work SiteStatutory InterpretationSummary JudgmentNondelegable DutyConstruction LawLiability
References
8
Case No. 2021 NY Slip Op 03261 [194 AD3d 576]
Regular Panel Decision
May 20, 2021

Pena v. Intergate Manhattan LLC

Plaintiff Juan Pena, a glazier, was injured when a power cord struck his arm while working on a motorized scaffold. The Supreme Court granted Pena's motion for partial summary judgment on his Labor Law § 240 (1) claim against the owners/general contractors (Intergate Manhattan LLC, Sabey Data Center Properties LLC, Sabey IGM Construction LLC, American Industries Corp. of New York). However, it denied his motion against subcontractor Greg Beeche Logistics, LLC due to factual disputes regarding Beeche's control over the work area. The court also denied the Owners/GC's motions for contractual and common-law indemnification against Beeche, deeming them premature. The Appellate Division, First Department, unanimously affirmed these rulings.

Labor Law § 240(1)Summary JudgmentIndemnificationContractual IndemnificationCommon-Law IndemnificationStatutory AgentComparative NegligenceScaffold AccidentConstruction Site SafetyGlazier Injury
References
4
Case No. MISSING
Regular Panel Decision

German v. Pena

Plaintiff Alexander German, a Russian native, sued Frederico Pena, Secretary of the U.S. Department of Energy, alleging national origin discrimination under Title VII. German claimed unequal employment terms, failure to promote, and prevention from competing for a promotion at the Environmental Measurements Laboratory (EML). The defendant moved to dismiss for lack of subject matter jurisdiction and failure to state a claim, arguing German failed to exhaust administrative remedies. The court found that German did not contact an EEO counselor within the required 45 days of the alleged discrimination, despite EML providing notice of these procedures. The court rejected regulatory and equitable exceptions, finding German's subjective ignorance of the EEO poster's content incredible and insufficient. The court granted summary judgment in favor of the defendant, dismissing the action with prejudice.

National Origin DiscriminationTitle VII Civil Rights ActAdministrative ExhaustionEEO CounselingSummary JudgmentFederal EmployeesTimeliness RequirementEquitable TollingEquitable EstoppelPro Se Litigant
References
23
Case No. CV-22-1903
Regular Panel Decision
Feb 22, 2024

In the Matter of the Claim of Ricardo Yolas

Ricardo Yolas, a car inspector and mechanic, appealed a Workers' Compensation Board decision. Yolas's claim for work-related injuries was established, but the self-insured employer alleged he violated Workers' Compensation Law § 114-a by misrepresenting his physical condition during a permanency evaluation and failing to disclose post-retirement work activity. A Workers' Compensation Law Judge and the Board found that Yolas deliberately misrepresented his condition and continued to work while collecting benefits, imposing both a mandatory penalty and a discretionary penalty permanently disqualifying him from future indemnity benefits. The Appellate Division affirmed the Board's decision, finding substantial evidence supported the violation and that the discretionary penalty was not an abuse of discretion given the egregious nature of the misrepresentations.

Workers' Compensation Law § 114-aFraudulent misrepresentationIndependent Medical Examination (IME)Undisclosed work activityPermanent disqualificationIndemnity benefitsSchedule Loss of Use (SLU)Substantial evidenceAbuse of discretionAppellate review
References
12
Case No. 534739
Regular Panel Decision
Jun 29, 2023

In the Matter of the Claim of Lidia Pena

Claimant, Lidia Pena, established claims for work-related injuries following an October 2014 accident. A Workers' Compensation Law Judge initially found her permanently totally disabled, but the Workers' Compensation Board modified this decision, rescinding the permanency classification and remitting the case for further development of the record, including a new determination on permanency and labor market attachment. The Board subsequently denied claimant's application for reconsideration and/or full Board review. Claimant appealed both Board decisions to the Appellate Division, arguing, among other things, that the decisions lacked substantial evidence and infringed upon her due process rights. The Appellate Division dismissed the appeals as interlocutory, noting that the Board's decisions did not finally resolve all substantive issues or reach dispositive threshold legal issues, and therefore were not proper subjects for appeal at this time.

Workers' CompensationAppellate ReviewPermanency ClassificationTotal DisabilityPartial DisabilityLabor Market AttachmentInterlocutory AppealDue ProcessRemittalBoard Decision
References
6
Case No. 2016 NY Slip Op 06663
Regular Panel Decision
Oct 11, 2016

Matter of Ricardo M.J. (Kiomara A.)

The Appellate Division, First Department, affirmed a Family Court order which found the respondent mother, Kiomara A., neglected her child, Ricardo M.J., through excessive corporal punishment. The Family Court's determination was supported by evidence including the child's statements to a social worker about being beaten with a spiked belt, the mother's admission, and observations of bruises on the child's body. The child's out-of-court statements were corroborated by the physical evidence and statements made to a detective. The appellate court upheld the Family Court's credibility assessment, noting the mother offered inconsistent explanations for the child's injuries. The appeal from the fact-finding order was dismissed as subsumed in the appeal from the order of disposition.

NeglectCorporal PunishmentChild AbuseFamily LawAppellate ReviewCredibility AssessmentEvidenceBruisesChild InterviewSocial Worker Testimony
References
4
Case No. 2023 NY Slip Op 03523 [217 AD3d 1291]
Regular Panel Decision
Jun 29, 2023

Matter of Pena v. Cardinal McCloskey Sch.

Claimant, Lidia Pena, appealed two decisions by the Workers' Compensation Board. The Board had modified a Workers' Compensation Law Judge's finding of permanent total disability, rescinding the classification and remitting the case for further development on permanency and labor market attachment. Claimant's subsequent request for reconsideration was denied. The Appellate Division, Third Department, dismissed both appeals as interlocutory, ruling that the Board's decisions did not finally resolve the substantive issues and thus were not subject to immediate review. The Court noted that piecemeal review of nonfinal decisions is generally avoided in workers' compensation cases, and the issues would be reviewable upon appeal of a final Board decision.

Workers' CompensationPermanent DisabilityInterlocutory AppealAppellate ProcedureBoard DecisionMedical ExaminationLabor Market AttachmentDue ProcessRescissionRemittal
References
6
Case No. ADJ1896744
Regular
Apr 12, 2012

RICARDO AGUILAR, RICARDO MORENO vs. ADECCO STAFFING, INSURANCE COMPANY STATE OF PENNSYLVANIA c/o BROADSPIRE SERVICES

This case involves a worker's compensation applicant, Ricardo Aguilar, whose case was dismissed on September 30, 2008. The Appeals Board granted reconsideration because the defendant failed to provide proof of service for the Notice of Intention to Dismiss and the Order of Dismissal. The Board found that the applicant did not receive proper notice or an opportunity to be heard, as required by Rule 10582. Consequently, the Board rescinded the Order of Dismissal, reinstating the applicant's case.

Workers' Compensation Appeals BoardPetition for ReconsiderationNotice of Intention to DismissOrder of DismissalProof of ServiceWCAB Rule 10582Petition for Dismissal of ClaimApplicant's AssertionRescind OrderEAMS files
References
0
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