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

Case No. 657577/19
Regular Panel Decision
Sep 11, 2025

McMillian v. Out-Look Safety LLC

This case involves an appeal concerning an order from the Supreme Court, New York County, which granted class certification to plaintiffs Craig McMillian, Eian McMillian, and Victor Ballast. The plaintiffs, identified as non-union construction "flaggers," asserted that they were unlawfully paid below the prevailing wage for public works projects in New York City, having been misclassified as "crossing guards" or "traffic control." The lawsuit targeted Out-Look Safety LLC, Restani Construction Corp., Triumph Construction Corp., Elecnor Hawkeye, LLC, and Safeway Construction Enterprises, LLC. The Appellate Division, First Department, affirmed the Supreme Court's decision, determining that the plaintiffs had adequately demonstrated the prerequisites for class certification under CPLR 901(a), including numerosity, commonality, typicality, and superiority. Additionally, the Appellate Division concurred that the Supreme Court's modified class definition successfully circumvented the creation of an impermissible "fail-safe" class.

Class certificationPrevailing wage disputeConstruction flaggersMisclassificationCPLR 901(a) factorsNumerosityCommonalityTypicalitySuperiorityFail safe class
References
15
Case No. MISSING
Regular Panel Decision
Sep 28, 1979

Fiat Motors of North America, Inc. v. National Highway Traffic Safety Administration of the Department of Transportation

Plaintiff Fiat Motors of North America, Inc. sought a preliminary injunction to prevent the National Highway Traffic Safety Administration (NHTSA) from holding a hearing concerning alleged defects in Fiat vehicles and a repurchase campaign. Fiat contended it was deprived of adequate notice, an opportunity to present its views, and a hearing before an impartial tribunal. The court, presided over by District Judge Metzner, applied the exhaustion of remedies doctrine, emphasizing that judicial intervention is typically warranted only after a final agency determination. The court denied Fiat's motion, finding that Fiat received reasonable notice, its constitutional claims could be addressed at the hearing and were subject to de novo review, and there was insufficient evidence of agency bias. Consequently, the court ordered the hearing to proceed as scheduled on September 28, 1979.

Preliminary InjunctionAdministrative LawJudicial ReviewExhaustion of RemediesDue ProcessAdequate NoticeImpartial TribunalNational Highway Traffic Safety AdministrationVehicle SafetyProduct Recall
References
9
Case No. MISSING
Regular Panel Decision
May 01, 2014

Marquez v. L & M Development Partners, Inc.

The plaintiff, an injured laborer, filed a personal injury lawsuit following a fall at a construction site, alleging Labor Law violations and common-law negligence against multiple parties, including Pro Safety Services, LLC (PSS), a safety consultant. PSS sought summary judgment to dismiss claims against it and for judgment on its own cross-claims. The Supreme Court initially denied PSS's motion. On appeal, the order was modified. The appellate court granted PSS summary judgment, dismissing the plaintiff's Labor Law and common-law negligence causes of action against PSS, and also dismissed various contribution and common-law indemnification claims against PSS, finding PSS lacked supervisory control. However, the denials of PSS's motion concerning contractual indemnification and failure to procure additional insured status were affirmed due to PSS's failure to meet its prima facie burden. The order was affirmed as modified on appeal.

Personal InjuryConstruction Site AccidentLabor Law ViolationsCommon Law NegligenceSummary JudgmentContributionIndemnificationSafety ConsultingAppellate ReviewContractual Obligations
References
45
Case No. ADJ3445477 (RDG 0108598)
Regular
Apr 21, 2011

DENNIS NEWELL (Deceased) DEBORAH NEWELL (Widow) vs. FORD CONSTRUCTION COMPANY, MAJESTIC INSURANCE COMPANY

This case concerns a widow's claim for death benefits due to an alleged Serious and Willful Misconduct by the employer, Ford Construction Company. The Appeals Board previously rescinded a decision finding such misconduct. The applicant now seeks reconsideration, arguing the Board's prior decision was inconsistent with an appellate court ruling concerning specific OSHA Safety Orders. The Board granted reconsideration, concluding that the applicant waived the issue of Safety Order 4999(b)(1) and that, despite the appellate court's mention of Safety Order 5042(a)(6) without a specific finding, the overall appellate decision negated the Serious and Willful claim. Therefore, the Board affirmed its prior decision and amended a finding to explicitly state no violation of Safety Order 5042 occurred.

Workers' Compensation Appeals BoardSerious and Willful MisconductLabor Code 4553Labor Code 4553.1Safety Order 5002Safety Order 4999(b)(1)Safety Order 5042(a)(6)RemittiturFindings and AwardRes Judicata
References
3
Case No. MISSING
Regular Panel Decision
Oct 10, 2002

Tr. Auth. v. Transp. Workers

This case consolidates two appeals concerning the New York City Transit Authority (NYCTA) and its subsidiary MABSTOA's attempts to vacate arbitration awards that reduced employee disciplinary penalties from dismissal to lesser sanctions for safety violations. The employees, David Rodriguez and Leroy Bright, were disciplined for separate safety incidents but had their dismissals overturned by arbitrators. The Appellate Division vacated these awards, citing public policy related to public safety. The Court of Appeals reversed, reinstating the arbitration awards, emphasizing the narrowness of the public policy exception to arbitration, especially in public employment collective bargaining agreements under the Taylor Law. The Court held that Public Authorities Law § 1204 (15), concerning public safety, does not 'absolutely prohibit' arbitrators from modifying penalties, nor does it mandate dismissal over other severe sanctions.

ArbitrationPublic Policy ExceptionCollective Bargaining AgreementEmployee DisciplineSafety ViolationsJudicial ReviewTaylor LawPublic EmploymentTransit AuthorityMisconduct
References
15
Case No. MISSING
Regular Panel Decision

Martinez v. 342 Property LLC

Defendant Flintlock Construction Services, LLC, a general contractor, hired Site Safety for site safety management. An unnamed plaintiff suffered an accident, leading to claims against Site Safety, including under Labor Law § 200 and common-law negligence, as well as contractual indemnification claims by Flintlock. Site Safety moved for summary judgment, arguing it lacked control over the work site. The court found that Site Safety's role was primarily advisory, with limited authority to stop unsafe work, and thus it lacked the necessary control to incur liability under Labor Law § 200 or common-law negligence. Additionally, the court dismissed Flintlock's contractual indemnification claim, noting the absence of evidence of negligence by Site Safety, which was a prerequisite for indemnification under their contract. The motion court's decision granting summary judgment to Site Safety was affirmed on appeal.

Summary JudgmentSite Safety ManagementGeneral Contractor LiabilityContractual IndemnificationCommon-Law IndemnityLabor Law § 200Negligence ClaimsControl of Work SiteAppellate DecisionConstruction Accident
References
10
Case No. 2023 NY Slip Op 03287
Regular Panel Decision
Jun 15, 2023

Dejesus v. Downtown Re Holdings LLC

Plaintiff Brian Dejesus was injured when a steel tubing fell through a gap in a sidewalk bridge at a construction site. The Appellate Division, First Department, modified a Supreme Court order, addressing multiple indemnification and breach of contract claims among the owner (Downtown Re Holdings LLC), general contractor (Noble Construction Group, LLC), and various subcontractors. The court found triable issues of fact regarding Noble's negligence and granted Downtown summary judgment for common-law indemnification against Rockledge Scaffold Corp. due to its negligence in bridge erection. Claims against City Safety Compliance Corp. were dismissed as its role was merely advisory. The decision also involved contractual indemnification between Downtown/Noble and The Safety Group, Ltd., granting a breach of contract claim against TSG for failing to procure required insurance.

Construction AccidentSidewalk Bridge DefectIndemnification ClaimsCommon-Law IndemnificationContractual IndemnificationSummary JudgmentGeneral Contractor NegligenceSubcontractor LiabilityInsurance ProcurementBreach of Contract
References
12
Case No. MISSING
Regular Panel Decision

Concerned Citizens of Albany-Shaker Road v. State

The appellate court reversed a Supreme Court order, dismissing a complaint against the Town of Colonie, which was filed by Concerned Citizens of Albany-Shaker Road and its members. Plaintiffs had sued the County of Albany regarding land ownership and the Town of Colonie for tax refunds. The Supreme Court had denied the Town's motion to dismiss, despite a significant delay in serving the complaint. However, the appellate court found that plaintiffs failed to provide a reasonable excuse for the delay and did not demonstrate the merit of their claims against the Town. Additionally, the complaint was deemed deficient for non-compliance with RPAPL 1515 and General Associations Law § 12, leading to its dismissal against the Town.

Delay in serviceMotion to dismissReal property tax assessmentRPAPL article 15 actionRPTL article 7 proceedingUnincorporated associationFailure to state a claimAppellate reviewProcedural deficiencyComplaint dismissal
References
8
Case No. 2023 NY Slip Op 05172 [220 AD3d 1033]
Regular Panel Decision
Oct 12, 2023

Matter of Espinoza v. City Safety Compliance Corp.

Jaime Espinoza, a safety manager, sustained injuries while pulling a gate in a parking area adjacent to a construction site after his shift. He filed for workers' compensation, but the Workers' Compensation Board denied the claim, concluding the injury did not arise out of and in the course of employment, as the employer neither controlled the parking area nor was it part of the jobsite. On appeal, the Appellate Division, Third Department, reversed this decision. The Court found a sufficient nexus between the employment and the parking area, noting that Espinoza was instructed to park there and construction materials were stored by the general contractor in the same vicinity, thereby extending the employer's premises. The matter was remitted to the Workers' Compensation Board for further proceedings.

Workers' Compensation LawScope of EmploymentOff-Premises InjuryParking Area InjuryPremises Extension DoctrineRemittalAppellate Division Third DepartmentConstruction SiteSafety ManagerArising Out of Employment
References
13
Case No. MISSING
Regular Panel Decision

Romaine v. New York City Transit Authority

Petitioners, Local 106 Transport Workers Union and Richard LaManna, initiated a proceeding to prevent the New York City Transit Authority (NYCTA) from mandating track safety training for property protection supervisors. The Supreme Court, Kings County, denied the petition, citing the petitioners' failure to exhaust administrative remedies and asserted Public Employment Relations Board (PERB) jurisdiction over improper labor practice claims. The appellate court reversed this judgment, ruling that the existing collective bargaining agreement was solely between the Union and the nonparty Manhattan and Bronx Surface Transit Operating Authority (MABSTOA), not the NYCTA, making its grievance procedures inapplicable to the NYCTA. Furthermore, the court found that PERB lacked jurisdiction because the NYCTA was not the employer of the supervisors. Consequently, the petition was granted, prohibiting the NYCTA from enforcing mandatory track safety training.

Labor LawCollective Bargaining AgreementAdministrative RemediesPublic Employment Relations BoardProhibition ProceedingTrack Safety TrainingProperty Protection SupervisorsManhattan and Bronx Surface Transit Operating AuthorityNew York City Transit AuthorityExhaustion Doctrine
References
4
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