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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

Belt Painting Corp. v. TIG Insurance

This case addresses whether an 'absolute pollution exclusion' in an insurance policy applies to indoor dissemination of paint or paint solvent fumes. Belt Painting Corp., the plaintiff, was sued by Joseph and Maria Cinquemani for injuries sustained from inhaling fumes during Belt's work. TIG Insurance Company, the defendant and Belt's insurer, denied coverage based on the pollution exclusion. The Supreme Court initially sided with TIG, but the Appellate Division reversed the decision. The Appellate Division held that the exclusion does not apply to cases where the 'environment,' as commonly understood, is unaffected by what could realistically be defined as 'pollution,' thus mandating TIG to defend and indemnify Belt.

Insurance LawPollution ExclusionAbsolute Pollution ExclusionContract InterpretationCommercial General Liability PolicyIndemnificationDeclaratory JudgmentIndoor Air ContaminationToxic FumesPaint Solvent
References
30
Case No. CA 14-01267
Regular Panel Decision
Mar 27, 2015

CARR, DANIEL v. MCHUGH PAINTING CO., INC.

Plaintiffs Daniel and Susan Carr initiated a Labor Law and common-law negligence action after Daniel Carr, a carpenter employed by a subcontractor, sustained a back injury while installing a door from a scissor lift at a renovation site. The Supreme Court denied the general contractor, McHugh Painting Co., Inc.'s, motion for summary judgment and partially granted plaintiffs' cross-motion under Labor Law § 240 (1), allowing an amendment for a Labor Law § 241 (6) claim. On appeal, the Appellate Division modified the order. It granted McHugh Painting Co., Inc.'s motion in part, dismissing the Labor Law §§ 240 (1) and 241 (6) claims against it, and denied the plaintiffs' cross-motion in its entirety. The court determined that Daniel Carr's injury was not an elevation-related hazard covered by Labor Law § 240 (1) and that the proposed Industrial Code violation for Labor Law § 241 (6) lacked merit.

Labor LawConstruction SafetyPersonal InjurySummary JudgmentAppellate ReviewScissor Lift AccidentElevation-Related HazardCommon-Law NegligenceIndustrial Code ViolationGeneral Contractor Liability
References
18
Case No. MISSING
Regular Panel Decision
Oct 15, 2004

Ribeiro v. Dynamic Painting Corp.

Raymundo Ribeiro, an employee of Wells Diversified Services, Inc., sustained injuries in October 1998 while sandblasting on the Castleton-on-Hudson Bridge for a joint venture including Dynamic Painting Corporation and Romano Enterprises, Inc. Ribeiro and his spouse initiated legal action against these contractors, asserting a violation of Labor Law § 240 (1). Plaintiffs sought summary judgment, while defendants moved for dismissal, arguing that Ribeiro was a 'special employee' of Dynamic, making the Workers' Compensation Law's exclusivity provisions applicable. The Supreme Court denied the plaintiffs' motion and granted the defendants' dismissal request. The Appellate Division affirmed both rulings, confirming the existence of a special employment relationship, thereby upholding the defendants' entitlement to summary judgment.

Special Employee DoctrineWorkers' Compensation ExclusivityLabor Law § 240(1)Summary JudgmentConstruction AccidentScaffold AccidentAppellate ReviewContractor LiabilityJoint VentureSandblasting
References
6
Case No. MISSING
Regular Panel Decision
May 27, 2014

Carr v. McHugh Painting Co.

Daniel Carr, a carpenter employed by a subcontractor, suffered a back injury while installing a heavy door from a scissor lift at an elevated height during a renovation project, leading him and other plaintiffs to sue the general contractor, McHugh Painting Co., Inc., under Labor Law and common-law negligence. The Supreme Court initially denied the defendant's summary judgment motion but granted the plaintiffs' cross-motion for partial summary judgment under Labor Law § 240 (1) and allowed amendment for an Industrial Code violation claim. On appeal, the order was modified; the appellate court dismissed the Labor Law §§ 240 (1) and 241 (6) claims against the defendant, ruling that Carr's injury was not caused by an elevation-related hazard falling within the scope of § 240 (1) and the alleged Industrial Code violation was factually inapplicable. However, the court affirmed the denial of the defendant's motion regarding the Labor Law § 200 claim and common-law negligence, concluding that the defendant did not prove the risk was inherent in the work and had exercised supervisory control over the work methods. Consequently, the case was partially affirmed and partially dismissed on specific claims.

Construction AccidentLabor LawSummary JudgmentAppellate ReviewPersonal InjurySafe Place to WorkGeneral Contractor LiabilityIndustrial Code ViolationElevation-Related HazardCommon-Law Negligence
References
18
Case No. MISSING
Regular Panel Decision
Oct 04, 2013

Boutros v. JTC Painting & Decorating Corp.

This is an Opinion & Order from the Southern District of New York concerning a lawsuit filed by two painters, Kamal Boutros and Samuel Zuniga, against their employer, JTC Painting and Decorating Corporation, and its owner John Caruso. The plaintiffs alleged violations of the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL) for unpaid overtime, and Zuniga also claimed FLSA retaliation. Defendants moved to dismiss, arguing lack of subject matter jurisdiction under the FLSA, that Boutros’s FLSA claim was moot due to a Rule 68 offer of judgment, and for the court to decline supplemental jurisdiction over state-law claims. The Court denied the motion to dismiss, finding that the plaintiffs adequately pleaded FLSA enterprise coverage and that Boutros's FLSA claim was not moot because the Rule 68 offer did not definitively provide the maximum possible recovery, thereby preserving a live controversy. Consequently, the Court retained supplemental jurisdiction over the state-law claims. A conference was scheduled for case management.

FLSANew York Labor LawUnpaid OvertimeWage and HourRetaliationMotion to DismissRule 68 Offer of JudgmentSubject Matter JurisdictionSupplemental JurisdictionEnterprise Coverage
References
13
Case No. MISSING
Regular Panel Decision

District Council No. 9 v. APC Painting, Inc.

Plaintiff District Council No. 9 (the Union) initiated this action under the Labor Management Relations Act to enforce several arbitration awards against APC Painting, Inc., its related APC and Apollo entities, and individual Gregory Fucci. The Union sought to confirm awards from the Joint Trade Committee (JTC) regarding violations of a collective bargaining agreement, including underpayment of wages and employment of non-union workers. Defendants moved to dismiss claims against Fucci and the Apollo entities, arguing non-participation in arbitration and denial of alter ego liability. Magistrate Judge Gorenstein denied the defendants' motion, allowing the alter ego theory to be pursued, and granted the Union's motion for partial summary judgment. The court confirmed the arbitration awards against the APC entities, affirming the limited judicial review of such awards and rejecting defendants' objections.

Labor LawArbitration AwardCollective Bargaining AgreementLMRA Section 301Alter Ego DoctrineCorporate Veil PiercingSummary JudgmentMotion to DismissWage ViolationsFringe Benefits
References
85
Case No. 2020 NY Slip Op 07698 [189 AD3d 611]
Regular Panel Decision
Dec 22, 2020

Clarke v. Empire Gen. Contr. & Painting Corp.

Plaintiff, Rohan Clarke, sustained personal injuries when he fell from a scaffold while dismantling it in an elevator shaft, leading to an action alleging violations of Labor Law §§ 240 (1) and 241 (6). The Supreme Court, Bronx County, initially granted plaintiff's motion for summary judgment on liability for these claims. The court also granted Lough Allen Masonry's motion to dismiss common-law indemnification and contribution claims, and Pen & Brush, Inc.'s motion for contractual indemnification against Empire General Contracting & Painting Corp. Empire's motion to dismiss plaintiff's total and permanent disability claim was denied. The Appellate Division, First Department, unanimously affirmed these orders, finding that plaintiff was not the sole proximate cause or a recalcitrant worker. The appellate court also determined that Empire's contractual indemnification obligation to Pen & Brush was triggered and that plaintiff had not sustained a grave injury under Workers' Compensation Law § 11.

Scaffold Fall InjuryLabor Law ViolationsSummary Judgment MotionContractual IndemnityCommon-Law Indemnification DismissalGrave Injury DeterminationWorkers' Compensation LawPremises LiabilityConstruction Site SafetyThird-Party Action
References
6
Case No. MISSING
Regular Panel Decision

Erie Painting & Maintenance, Inc. v. Illinois Union Insurance

Erie Painting and Maintenance, Inc. filed a diversity action against its insurer, Illinois Union Insurance Company, seeking a declaration that Illinois Union is obligated to defend and indemnify it in an underlying New York State court action. The dispute centers on the timeliness of notice given by Erie Painting to Illinois Union regarding a September 2008 accident involving an employee, Dimitrios Dovas, and the timeliness of Illinois Union's subsequent disclaimer of coverage. Both parties moved for summary judgment. The court denied both motions, finding genuine issues of material fact regarding whether Colemont acted as an agent for Illinois Union, the reasonableness of Illinois Union's 29-day delay in disclaiming coverage, and Erie Painting's good-faith belief that Dovas would not pursue a lawsuit.

Insurance coverageDuty to defendDuty to indemnifyNotice of claimTimeliness of noticeDisclaimer of coverageAgency relationshipApparent authoritySummary judgmentFederal Rules of Civil Procedure
References
44
Case No. MISSING
Regular Panel Decision

Claim of Nomikos v. Ionic Painting Corp.

Claimant injured his back while working for Ionic Painting Corporation in November 2000. Initially, The State Insurance Fund (SIF) disputed coverage, but was later discharged by the Workers’ Compensation Board, which found its policy correctly canceled. Consequently, Ionic Painting Corporation was determined responsible for the awards. Ionic appealed to the Board, arguing a denial of opportunity to cross-examine the claimant’s physician. The Board affirmed, citing Ionic's failure to request cross-examination and to appeal prior determinations regarding employment, accident, and SIF's discharge. The appellate court affirmed the Board's decision, concluding that these issues were not preserved for review and that the record supported the Board's findings, including that Ionic received ample notice of the proceedings.

Workers' CompensationEmployer LiabilityInsurance Coverage DisputeAppellate ReviewProcedural Due ProcessFailure to Preserve IssueNotice of ProceedingsCross-Examination RightsBoard Decision AffirmationCompensable Injury
References
4
Case No. OAK 0330047
Regular
Oct 05, 2007

Ricardo Buendia vs. Sixtos Painting, State Compensation Insurance Fund

The Workers' Compensation Appeals Board granted reconsideration of an Order Approving Compromise and Release for an industrial injury. The Board rescinded the approval and returned the case to the trial level because the applicant, Ricardo Buendia, claimed he did not understand he was settling his case. This allows Buendia to pursue setting aside the settlement agreement for good cause.

Workers' Compensation Appeals BoardReconsiderationCompromise and ReleaseSet AsideIndustrial InjuryPetition for ReconsiderationWCJGood CauseTrial LevelRescind
References
0
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