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

Case No. MISSING
Regular Panel Decision

Kennedy v. Kennedy

This case addresses whether income from a noncompetition agreement is subject to the 65% cap for income executions under CPLR 5241 (g) (1) (ii) in support obligations. Petitioner Nancy E. Kennedy sought to garnish 100% of respondent Kenneth E. Kennedy's noncompetition income from Signet Advertising, Inc., arguing the statutory cap applies only to employer-employee earnings. After initial differing decisions by a Hearing Examiner and Family Court, the Court determined that CPLR 5241, mirroring its federal counterpart, Title III of the Consumer Credit Protection Act, intended the garnishment limitations to apply exclusively to income derived from an employer-employee relationship. The Court concluded that payments for "refraining from rendering personal services" do not constitute "earnings" as commonly defined in legislative contexts. Therefore, the income from the noncompetition agreement is not protected by the CPLR 5241 limitations, leading to the reversal of the Family Court's order and reinstatement of the Hearing Examiner's decision.

noncompetition agreementincome executionCPLR 5241spousal supportchild supportdisposable earningsemployer-employee relationshipgarnishmentFederal Consumer Credit Protection Actpersonal services
References
14
Case No. MISSING
Regular Panel Decision

In re the Establishment of a Supplemental Needs Trust for Kennedy

John Kennedy, a disabled person under 65, receives Social Security disability payments. His guardian, Hope Kennedy, petitioned to establish a supplemental needs trust solely funded by these payments to avoid Medicaid spend-down requirements. The court addressed the apparent conflict between New York's Social Services Law concerning spend-down (366[2][a][7]) and supplemental needs trusts (366[2][b][2][iii]), determining that such trusts serve as an exception to general Medicaid rules. Noticing parties, the Nassau County Department of Social Services and the New York State Attorney General’s Office, did not object to the trust's formation or funding source, though the Attorney General raised objections to specific provisions. The court granted the application, approving the trust under specific conditions, including provisions related to the trustee's counsel, housing investments, annual accounting with the Surrogate's Court, and ensuring state reimbursement priority upon John Kennedy's death in accordance with POMS guidelines.

Supplemental Needs TrustMedicaid EligibilitySocial Security DisabilitySpend Down ProgramPayback TrustException TrustGuardianshipRepresentative PayeeStatutory InterpretationAdministrative Deference
References
19
Case No. 2004 NY Slip Op 24170
Regular Panel Decision
May 07, 2004

Kennedy v. Pine Hill Coffee Serv.

Gerald Kennedy, an employee of Sahlem's Roofing, was injured on February 5, 2001, while replacing a roof on a commercial building owned by James DeMarco and occupied by Pine Hill Coffee Services, Inc. Kennedy fell about 9-10 feet due to the defendants' failure to provide adequate safety equipment. Plaintiffs moved for partial summary judgment under Labor Law § 240 (1), asserting absolute liability. Defendants argued Kennedy was a recalcitrant worker and that a co-employee, Dorian, served as a 'safety device,' and Kennedy's failure to wait for Dorian caused the accident. The court, however, ruled that a co-employee cannot be considered a 'safety device' under Labor Law § 240 (1) and that worker negligence is irrelevant for absolute liability. The court found that the absence of a safety device was the proximate cause of Kennedy's injuries, thus granting the plaintiffs' motion for partial summary judgment.

Labor Law § 240(1)Absolute liabilitySafety devicesElevation-related hazardRecalcitrant worker defenseProximate causePartial summary judgmentRoofing accidentCo-employee as safety deviceStatutory interpretation
References
7
Case No. MISSING
Regular Panel Decision

Kennedy v. Weeks Marine, Inc.

Martin R. Kennedy was injured while working on a barge chartered by his employer, American Bridge Company, from Week’s Marine, Inc. Kennedy fell from a wooden plank serving as the barge's gangway, which was supplied by American Bridge. He brought suit pursuant to 33 U.S.C. § 905(b), but Magistrate Judge David F. Jordan granted summary judgment for Week’s Marine, concluding they had no duty to provide a safe gangway under a bare boat charter. Kennedy appealed this judgment, arguing Week's Marine had knowledge of workers on the barge. The District Court affirmed the lower court's decision, ruling that Week's Marine, having relinquished control of the vessel in a bare boat charter, was not responsible for conditions arising after the charter or for providing a gangway, as the charterer, American Bridge, became the owner pro hac vice and bore that duty.

Bare Boat CharterMaritime LawSummary JudgmentLongshore and Harbor Workers' Compensation ActVessel Owner LiabilityCharterer LiabilityGangway SafetyDuty of CareOwner Pro Hac ViceAppellate Review
References
14
Case No. MISSING
Regular Panel Decision

Kennedy v. Pine Hill Coffee Service, Inc.

Gerald Kennedy, an employee of Sahlem’s Roofing, sustained injuries after falling from a roof while working on a building owned by defendant James DeMarco and occupied by Pine Hill Coffee Services, Inc. Plaintiffs moved for partial summary judgment, arguing a violation of Labor Law § 240 (1) due to the defendants' failure to provide adequate safety equipment. Defendants contended that a co-employee acting as a 'spotter' constituted a safety device and that Kennedy was a recalcitrant worker for continuing to work when the 'spotter' left. The court rejected the argument that a human 'spotter' is a safety device under Labor Law § 240 (1), emphasizing the requirement for physical safety devices. Finding that the absence of proper safety devices was the proximate cause of Kennedy’s injuries, the court granted the plaintiffs' motion for partial summary judgment.

Labor Lawabsolute liabilityconstruction accidentfall from heightsafety devicesrecalcitrant workerproximate causeNew York Lawsummary judgmentowner liability
References
7
Case No. MISSING
Regular Panel Decision
Feb 10, 1997

Sam v. Town of Rotterdam

Plaintiff Sien Sam, a brake technician, was injured on February 2, 1993, when a police vehicle owned by the defendant experienced brake failure at Salisbury Chevrolet, Inc. Sam's complaint alleged derivative liability of the defendant as the vehicle owner and negligence for failing to disclose the vehicle's dangerous braking system. The Supreme Court granted summary judgment dismissing the complaint, leading to the plaintiffs' appeal. The appellate court affirmed the dismissal, noting that objections to the technical form of a supporting deposition must be preserved at the trial level. Furthermore, the court found plaintiffs failed to present evidence identifying the cause of the brake failure or demonstrating the defendant's knowledge of the defect.

Workers' Compensation LawSummary JudgmentAppellate ReviewIssue PreservationEvidentiary RulesAffidavit RequirementVehicle NegligenceBrake FailureOwner LiabilityDuty to Warn
References
6
Case No. ADJ4119034 (OAK 0324958)
Regular
Jun 17, 2014

DEBRA DA RE vs. COBLEY, CORAL, DDS, KOUROSH HARANDI, DDS; ZENITH INSURANCE CO.

This case concerns a defendant's petition for reconsideration of a workers' compensation award of permanent total disability. The defendant argued that the award was improperly based on medical opinions including non-physical impairments. The Workers' Compensation Appeals Board adopted the judge's report, which found the Agreed Medical Evaluator's opinions supported the finding of permanent total disability based solely on the admitted physical injuries. Consequently, the petition for reconsideration was denied.

WCABPetition for ReconsiderationDeniedCumulative InjuryDental HygienistPermanently Totally DisabledAgreed Medical EvaluatorAMA GuidesVocational ConsultantsUnreasonable Delay
References
2
Case No. 2024 NY Slip Op 24190 [84 Misc 3d 497]
Regular Panel Decision
Jul 05, 2024

Cartwright v. Kennedy

This case addresses a novel question regarding the appropriate venue for challenging an independent designating/nominating petition in an Election Law case, specifically for candidates seeking statewide office. Petitioners, led by Caroline Cartwright, sought to invalidate the nominating petition of Robert F. Kennedy, Jr. and Nicole Shanahan for President and Vice President, alleging fraud and false residency claims. Respondents-candidates moved to change venue from Dutchess County to Albany County, arguing Albany was the proper venue under CPLR 506 (b) and 22 NYCRR 202.64 (a) as the location where the New York State Board of Elections (NYSBOE) makes its determinations. The court determined that CPLR 506 (b) applied, and that "the material events" giving rise to the claims were the filing of the nominating petition and objections with NYSBOE in Albany, and NYSBOE's subsequent actions. Consequently, the court granted the respondents-candidates' motion, ordering the transfer of the case from Dutchess County to Albany County due to improper venue in Dutchess and proper venue in Albany.

Election Law DisputeVenue MotionNominating Petition ValidityCandidate Fraud AllegationsStatewide Political CampaignRobert F. Kennedy Jr. CandidacyNew York State Board of Elections JurisdictionCPLR Article 5Judicial ProcedureDutchess County Supreme Court
References
24
Case No. 2007 NY Slip Op 33135(U)
Regular Panel Decision
Oct 03, 2007

Kamin v. Kennedy & Co.

A floor installer filed a personal injury lawsuit against Kennedy, a general contractor, after falling on crumpled protection paper. Kennedy's cross-motion for summary judgment, seeking dismissal of the complaint and contractual indemnification from the plaintiff's employer, Interior, was denied by the Supreme Court. The Appellate Division unanimously affirmed this denial. The court found that plaintiff's post-accident observations and trade customs were sufficient to establish Kennedy's burden to prove it did not create the hazard or cause the fall, which Kennedy failed to do, thus precluding summary judgment.

Personal InjurySummary JudgmentContractual IndemnificationGeneral Contractor NegligenceHazardous ConditionAppellate ReviewBurden of ProofCustoms of TradeNew York LawFloor Installation
References
4
Case No. 2023 NY Slip Op 00466
Regular Panel Decision
Feb 02, 2023

Matter of Kennedy v. 3rd Track Constructors

Claimant Alastair Kennedy, an operating engineer, sustained work-related injuries in October 2019 after falling into a hole at a job site, filing for workers' compensation benefits for left shoulder, foot, and ankle injuries. The employer's carrier accepted the claim for foot and ankle but contested neck and left shoulder injuries, also raising a Workers' Compensation Law § 114-a violation. A Workers' Compensation Law Judge (WCLJ) and subsequently the Workers' Compensation Board found claimant's testimony regarding the accident and prior injuries not credible, denying the claims for neck and left shoulder injuries and imposing mandatory and discretionary penalties under Workers' Compensation Law § 114-a. On appeal, the Appellate Division, Third Department, affirmed the Board's findings regarding the non-causal relation of neck and left shoulder injuries and the mandatory penalty for misrepresentations. However, the Court reversed the discretionary penalty of total disqualification from future wage loss benefits, deeming it disproportionate to the offense, modifying and affirming the Board's decision as so modified.

Workers' CompensationInjury ClaimCredibility AssessmentMisrepresentationWorkers' Compensation Law § 114-a ViolationMandatory PenaltyDiscretionary PenaltyWage Loss BenefitsCausal RelationshipMedical Evidence
References
16
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