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

Case No. 2022 NY Slip Op 02128 [203 AD3d 1167]
Regular Panel Decision
Mar 30, 2022

Matter of Walker v. Sterkowicz-Walker

This case involves a dispute over parental access rights between divorced parents, Thomas Walker (father) and Janet Sterkowicz-Walker (mother), concerning their younger child. The Family Court initially granted the father's petition for sole legal and residential custody of the child. The mother appealed an order that limited her parental access to written letters and weekly one-hour telephone or video sessions, contingent on the child's consent. The Appellate Division affirmed the Family Court's decision, concluding that there was a sound and substantial basis in the record to limit the mother's parental access. This determination was based on evidence of the child's fear and anxiety regarding parental access, supported by testimony from the father, the child's therapist, and observations by social workers.

Custody modificationParental accessChild's best interestFamily Court ActAppellate reviewChild psychologyVirtual visitationParental rightsChild's consentDetriment to child
References
9
Case No. 127943/02; 103953/03
Regular Panel Decision

Roberts v. City of New York

District Council 37 (DC-37) brought two Article 78 proceedings (Roberts I and Roberts II) against the City of New York and its Department of Education, challenging the layoff of over 300 provisional civil service employees. DC-37 alleged violations of the Layoff Manual, improper retention of Work Employment Program (WEP) employees, unauthorized contracting out of services, and discriminatory separation of provisional employees who had passed civil service exams. The court found that the Layoff Manual did not create enforceable rights for employees. It also determined that claims regarding WEP workers and contracting out lacked sufficient legal grounds or required different remedies, characterizing these as managerial decisions. Consequently, the court dismissed both petitions, granting the City's cross-motions.

Civil Service LayoffsProvisional EmployeesArticle 78 ProceedingsUnion DisputesBudgetary ConstraintsGovernment Workforce ReductionWEP ProgramAnti-Displacement ProvisionsContracting OutPublic Sector Employment
References
7
Case No. MISSING
Regular Panel Decision

United States v. Walker

Chief Judge McAvoy considered the motion by Tyrone Walker and Tony Walker to dismiss Count One CCE charges against them, based on the government's alleged failure to prove the 'organizer, supervisor, or manager' element. The court meticulously reviewed testimonial evidence regarding individuals allegedly managed or organized by each defendant in a cocaine distribution network. Judge McAvoy concluded there was a 'minimally sufficient basis' for a rational jury to find that both Walkers managed several individuals, thus satisfying the CCE elements. Consequently, the motion to dismiss was denied, and the identified individuals will be presented to the jury as potential managees.

Continuing Criminal EnterpriseDrug TraffickingCCE ChargesMotion to DismissSufficiency of EvidenceOrganizerSupervisorManagerCocaine DistributionFederal Court
References
13
Case No. MISSING
Regular Panel Decision

In re Robert Plan Corp.

Kenneth Kirschenbaum, the Chapter 7 Trustee for The Robert Plan Corporation and The Robert Plan of New York Corporation, sought court approval for fee awards for himself and his professionals for administering an ERISA plan. The U.S. Department of Labor (DOL) objected, asserting the court lacked jurisdiction to award fees from Plan assets and had specific objections to the reasonableness of the fees. The court affirmed its core jurisdiction over the Trustee's actions as Plan administrator and his professionals' compensation, regardless of whether payments came from Plan or estate assets, citing previous rulings. The court analyzed whether Bankruptcy Code §§ 326 and 330 conflicted with ERISA statutes concerning fiduciary compensation, concluding no substantive conflict existed and the Bankruptcy Code's specific compensation scheme governed. Ultimately, the court largely overruled DOL's objections and granted the fee applications for the Trustee, K & K, Witz, and Whitfield, deeming the requested amounts reasonable and compliant with the Bankruptcy Code. The awards are payable from the Plan's Pguy Account, with any shortfall covered by the Debtors' estate.

Bankruptcy LawERISAChapter 7 TrusteeFee ApplicationPlan AdministrationJurisdictionReasonable CompensationStatutory ConstructionDepartment of LaborFiduciary Duties
References
50
Case No. 2022 NY Slip Op 03321
Regular Panel Decision
May 19, 2022

Jackson v. Hunter Roberts Constr., L.L.C.

Plaintiff Robert Jackson sustained personal injuries after tripping and falling on a plywood ramp at a construction site while working as a plumber. He brought claims against the owner, Hunter Roberts Construction, L.L.C., and the general contractor, Bronx Parking Development Company, L.L.C., under Labor Law § 200 and for common-law negligence. The Supreme Court initially granted the defendants' motion for summary judgment. However, the Appellate Division modified this order, denying the defendants' motion and reinstating the Labor Law § 200 and common-law negligence claims, citing unresolved triable issues of fact concerning constructive notice of the alleged dangerous condition.

Personal InjuryConstruction Site AccidentSummary JudgmentLabor LawCommon-Law NegligenceDangerous ConditionConstructive NoticeAppellate ReviewTriable Issues of FactPlywood Ramp
References
4
Case No. 2022 NY Slip Op 00484
Regular Panel Decision
Jan 27, 2022

Walker v. GlaxoSmithKline, LLC

Plaintiff William Walker was injured while working at a pharmaceutical plant owned by GlaxoSmithKline, LLC and Stiefel Laboratories, Inc. He filed a workers' compensation claim, which was controverted by GlaxoSmithKline's carrier, Old Republic, arguing Walker was an employee of Manpower, Inc. A Workers' Compensation Law Judge subsequently discharged Old Republic from the proceeding. Walker then sued the GlaxoSmithKline entities, who raised a workers' compensation affirmative defense. The Appellate Division reversed a lower court order, holding that judicial estoppel prevented the defendants from asserting this defense given their prior inconsistent position in the workers' compensation proceeding, and reinstated the plaintiff's complaint.

Judicial EstoppelWorkers' Compensation LawAffirmative DefenseUntimely AnswerSpecial Employee DoctrineEmployer-Employee RelationshipSummary JudgmentAppellate DivisionWorkers' Compensation BoardInsurance Carrier Liability
References
41
Case No. 127943/02
Regular Panel Decision
Jan 29, 2003

Matter of Roberts v. City of New York

This case involves two separate Article 78 proceedings (Roberts I and Roberts II) brought by District Council 37 (DC-37) against the City of New York and its Department of Education (DOE). DC-37 challenged the layoff or termination of approximately 303 provisional civil service employees of the DOE, asserting violations of the City's Layoff Procedural Manual, unlawful displacement by WEP workers, and improper contracting out of services. Petitioners also argued in Roberts II that provisional employees who passed civil service exams were unfairly separated while other provisional employees who had not passed exams were retained. Justice Lewis Bart Stone ruled that the Layoff Manual did not create enforceable rights for employees, dismissed claims regarding WEP workers as speculative without specific violations, and found no legal restriction on the City's managerial decision to contract out services. The court also concluded that DC-37 failed to demonstrate arbitrary or capricious action by the City in the separation of provisional employees, thus dismissing both petitions.

LayoffsProvisional EmployeesArticle 78 ProceedingCivil Service LawUnion ContractBudgetary ConstraintsWork Experience Program (WEP)Contracting OutJudicial ReviewPublic Sector Employment
References
8
Case No. 2020 NY Slip Op 03708
Regular Panel Decision
Jul 02, 2020

Matter of Roberts v. Eastman Kodak Co.

Claimant Shirley Roberts, injured in 1989, received workers' compensation benefits for a permanent partial disability. In 2017, her employer alleged she violated Workers' Compensation Law § 114-a by making a material misrepresentation, citing video surveillance of her performing duties as a church pastor despite reporting no volunteer work. A Workers' Compensation Law Judge found insufficient evidence of a violation, a decision affirmed by the Workers' Compensation Board. The Board credited Roberts' testimony that she did not consider her church activity as work or volunteer work, but rather spiritual worship. The Appellate Division, Third Department, affirmed the Board's decision, finding it supported by substantial evidence as the Board is the sole arbiter of credibility.

Workers' CompensationMisrepresentationDisability BenefitsCredibilityVideo SurveillanceChurch PastorVolunteer WorkMaterial FactPermanent Partial DisabilityAppellate Division
References
7
Case No. 534849
Regular Panel Decision
Jul 20, 2023

In the Matter of the Claim of Robert Perry

Claimant Robert Perry, a correction officer, appealed two decisions from the Workers' Compensation Board. Initially, Perry filed a claim in January 2017 for left hand and wrist injuries, which was established. He later sought to amend his claim in 2020 to include a causally-related left elbow injury, diagnosed in May 2020 and surgically repaired in February 2021. The Board, reversing a WCLJ decision, found the claim for the elbow injury time-barred under Workers' Compensation Law § 28, as it was filed more than two years after the original accident. The Board also denied Perry's application for reconsideration. The Appellate Division affirmed the Board's decisions, ruling that the claim for the left elbow injury was indeed time-barred and that the Board did not abuse its discretion in denying reconsideration, having properly weighed the evidence including conflicting medical records and claimant's testimony.

Workers' Compensation Law § 28Statute of LimitationsTimely FilingClaim AmendmentLeft Elbow InjuryMedical MisdiagnosisWorkers' Compensation BoardAppellate ReviewFactual IssueSubstantial Evidence
References
6
Case No. CA 13-01811
Regular Panel Decision
Jul 03, 2014

BISH, ROBERT v. ODELL FARMS PARTNERSHIP

Plaintiff Robert Bish, a cement truck driver, sustained injuries while cleaning his employer's truck on property owned by defendant Odell Farms Partnership. Bish filed a Labor Law action, alleging violations of Labor Law § 240 (1) and § 241 (6). The Supreme Court partially denied defendant's motion for summary judgment. On appeal, the Appellate Division, Fourth Judicial Department, reversed the lower court's order, granted the defendant's motion in its entirety, and dismissed the complaint. The court held that routine cleaning of a cement truck was not an activity protected under Labor Law § 240 (1) as it did not constitute "erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure," nor was it "construction work" under Labor Law § 241 (6). A dissenting opinion argued that issues of fact existed regarding whether plaintiff was engaged in protected construction activity.

Labor LawConstruction SafetyWorker InjurySummary Judgment MotionAppellate ReviewCement Truck CleaningStatutory InterpretationActivity CoverageRoutine Maintenance ExclusionPersonal Injury Lawsuit
References
14
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