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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

Delishi v. Property Owner USA LLC

Plaintiff Haxhi Delishi sued multiple defendants after he slipped and fell at a construction site in New York County on November 14, 2005, while working for Collins Building Services, Inc. He alleged negligence against the named defendants for causing or allowing the dangerous condition (a piece of cardboard covering a metal pipe) or failing to warn him. Several defendants, including Stateside Contracting Co., Inc., Jordan Daniels Electrical Contractors, Inc., Property Owner (USA), LLC, HSBC North America, Inc., and Jones Lang LaSalle Services, Inc., moved for summary judgment to dismiss the complaint and cross-claims against them. Third-party defendant Collins also moved for dismissal of Jones Lang's third-party complaint. The court, presided over by Justice Jack M. Battaglia, denied all motions for summary judgment, finding that none of the moving parties had established prima facie entitlement to judgment as a matter of law, partly due to issues with inadmissible deposition testimony and insufficient evidence regarding creation of the condition or notice of it.

Slip and FallConstruction Site InjuryWorkplace AccidentSummary Judgment MotionNegligence ClaimCommon-law IndemnificationContractual IndemnificationContributionAdmissibility of Deposition TranscriptsDangerous Condition
References
66
Case No. MISSING
Regular Panel Decision

Saxby v. LPS Field Services, Inc.

Plaintiff Richard Saxby was injured after falling off a roof while performing property repairs for his company, Finger Lakes Property Services, at a property in foreclosure owned by First Union Corporation. First Union had contracted LPS Field Services for property preservation, which subsequently subcontracted through several intermediaries, eventually leading to Saxby's company. Saxby sued LPS, alleging common law negligence and violations of New York Labor Law §§ 200, 240, and 241, with the case removed to federal court based on diversity jurisdiction. LPS moved to dismiss the complaint under Fed. R. Civ. Proc. 12(b)(6). The court granted the motion in part, dismissing the negligent hiring claim, but denied the motion with respect to the remaining common law negligence and Labor Law claims, and granted the plaintiff leave to amend his complaint to specify Industrial Code violations.

NegligenceLabor LawMotion to DismissConstruction AccidentProperty PreservationIndependent ContractorDuty of CareFederal JurisdictionDiversity JurisdictionNew York Law
References
15
Case No. MISSING
Regular Panel Decision

Volt Technical Services Corp. v. Immigration & Naturalization Service

Plaintiff Volt Technical Services Corp. applied for H-2 visas for nuclear start-up technicians, which the Immigration and Naturalization Service (INS) denied, asserting the need was permanent, not temporary. After the denial was affirmed on appeal, Volt filed suit, alleging the INS's decision was arbitrary and capricious. The court upheld the INS's interpretation of the Immigration and Nationality Act § 101(a)(15)(H)(ii), which requires the employer's need for services to be temporary, not just the individual assignments. Finding that Volt demonstrated a recurring need for such technicians over several years, the court granted the INS's motion for judgment on the pleadings and denied Volt's.

Immigration LawH-2 visasNonimmigrant WorkersTemporary EmploymentImmigration and Nationality ActAdministrative Procedures ActDeclaratory Judgment ActAgency InterpretationJudicial ReviewNuclear Industry
References
5
Case No. MISSING
Regular Panel Decision

Americredit Financial Services, Inc. v. Oxford Management Services

AmeriCredit Financial Services, Inc. (AmeriCredit) commenced an action to confirm an arbitration award against Oxford Management Services (OMS). OMS cross-moved to vacate the award, alleging the arbitrator exceeded his powers by dismissing a counterclaim and manifestly disregarded the law. The arbitrator had dismissed OMS's counterclaim for spoilation of evidence. The Court affirmed the arbitrator's decision, finding he did not exceed his authority under the RSA by dismissing the counterclaim or by interpreting the contract terms regarding account termination. The Court also found no manifest disregard for the law, concluding the arbitrator's decision was rationally supported by the record. Consequently, AmeriCredit's motion to confirm the award was granted, and OMS's motion to vacate was denied.

Arbitration Award ConfirmationArbitration Award VacaturFederal Arbitration ActManifest Disregard of LawArbitrator PowersSpoilation of EvidenceContract InterpretationCollection Agency DisputeSummary ProceedingJudicial Review of Arbitration
References
41
Case No. MISSING
Regular Panel Decision

McNaughton v. Broach

Sixteen members of Local Union No. 3, International Brotherhood of Electrical Workers, initiated a lawsuit against defendant Broach and 34 other officers, alleging a conspiracy to arbitrarily control the union, deprive members of autonomy, and manage affairs for personal gain. The plaintiffs sought various injunctive reliefs, including restoring member rights and directing an accounting of funds. The primary issue on appeal concerned the validity of service by publication on defendant Broach, a non-resident, who moved to vacate the service, arguing its impropriety due to his non-residency and lack of property within New York State, a prerequisite for such service without personal jurisdiction. The Special Term initially denied Broach's motion, reasoning that the cause of action arose in New York, related to local property rights, and the sought relief could be enforced locally. However, the appellate court reversed this decision, ruling that while the cause of action might have originated in New York, substituted service on a non-resident defendant requires proof of property within the state over which the court can assume in rem jurisdiction, as personal jurisdiction (in personam) was absent. The court emphasized that without such property or in personam jurisdiction, any judgment directing specific actions or an accounting against the non-resident Broach would be unenforceable, therefore rendering the order for service by publication void.

Service by PublicationJurisdiction In RemNon-Resident DefendantUnion GovernanceLabor Union DisputeAppellate ProcedureMotion to VacateProperty RightsEnforceability of JudgmentConspiracy
References
7
Case No. 2017 NY Slip Op 08027 [155 AD3d 900]
Regular Panel Decision
Nov 15, 2017

Poalacin v. Mall Properties, Inc.

The plaintiff, Nelson Poalacin, was injured when he fell from a defective ladder while working at a retail property undergoing refurbishment. He sued multiple defendants, including the property owners (Mall Properties, Inc., KMO-361 Realty Associates, LLC, The Gap, Inc.), the general contractor (James Hunt Construction), and subcontractors (Weather Champions, Ltd., APCO Insulation Co., Inc.), alleging violations of Labor Law §§ 240 (1), 200, and 241 (6), as well as common-law negligence. The Supreme Court initially denied Poalacin's motion for summary judgment on Labor Law § 240 (1) and later granted the defendants' motions to dismiss the complaint. On appeal, the Appellate Division reversed the Supreme Court's orders, granting Poalacin summary judgment on the Labor Law § 240 (1) claim and denying the defendants' motions to dismiss the other Labor Law claims. The court also made declarations regarding indemnification and insurance coverage between the parties, finding Harleysville Insurance's policy was excess to Netherlands Insurance Company's policy, and remitted the matter for judgment entry.

Labor LawConstruction AccidentWorkplace SafetyLadder FallSummary JudgmentIndemnificationInsurance DisputesAdditional InsuredCommon-Law NegligenceThird-Party Action
References
37
Case No. MISSING
Regular Panel Decision

Ward v. Stewart

Plaintiffs Kevin A. Ward, Sr. and Pamela Ward filed a wrongful death action after their son was killed in a sprint car race by defendant Anthony Wayne Stewart. Stewart removed the suit to federal court and asserted an indemnification counterclaim based on two liability releases. Defendant moved for partial summary judgment, arguing negligence claims were barred by the Releases or by the doctrine of primary assumption of risk. Plaintiffs opposed and cross-moved seeking dismissal of defendant's counterclaim for indemnification, arguing the Releases were inapplicable or unenforceable. A previous December 2017 Order invalidated the Releases and dismissed Stewart's counterclaim. Stewart then moved to certify certain portions of the December Order for interlocutory appeal or for partial final judgment, which the court denied. The court found no exceptional circumstances warranting immediate appeal concerning the releases or the assumption-of-risk defense, and no just reason for delay for partial final judgment, concluding that the motion for certification and/or entry of partial final judgment is denied.

Wrongful Death ActionSprint Car RacingLiability ReleasesAssumption of RiskInterlocutory AppealPartial Final JudgmentFederal Civil ProcedureNew York General Obligations LawNegligence ClaimsIndemnification Counterclaim
References
61
Case No. 2023 NY Slip Op 00226 [212 AD3d 746]
Regular Panel Decision
Jan 18, 2023

Stewart v. Brookfield Off. Props., Inc.

The plaintiff, Larry Stewart, sought damages for personal injuries sustained from a fall at a construction site, allegedly due to tripping on a raised concrete floor. He initiated an action against Brookfield Office Properties, Inc., Americon Construction, Inc., and Fried, Frank, Harris, Shriver & Jacobson, LLP, among others, claiming a violation of Labor Law § 241 (6) predicated on 12 NYCRR 23-1.7 (e) (1). The defendants successfully moved for summary judgment in the Supreme Court, arguing the Industrial Code provision was inapplicable because the area of the fall was not a 'passageway.' The Appellate Division, Second Department, affirmed the Supreme Court's order, agreeing that the defendants had established prima facie that 12 NYCRR 23-1.7 (e) (1) was not applicable under the circumstances.

Personal InjuryConstruction AccidentLabor LawIndustrial Code ViolationSummary JudgmentAppellate ReviewWorkplace SafetyTripping HazardPassageway DefinitionNondelegable Duty
References
8
Case No. 704 F.Supp.2d 237
Regular Panel Decision

Saladino v. Stewart & Stevenson Services, Inc.

Vito Saladino sustained quadriplegic injuries after being struck by an unsecured baggage tractor hood manufactured by Stewart & Stevenson Services, Inc. (S&S) while working for American Airlines (AA). Saladino and his wife sued S&S for failure to warn, and S&S impleaded AA. A jury found S&S 30% and AA 70% at fault, with Saladino's negligence not a proximate cause. This opinion affirms the jury's verdict, denying S&S's and AA's motions for a directed verdict, judgment notwithstanding the verdict, and judgment as a matter of law. It also denies subsequent motions for reconsideration, affirming S&S's duty to warn of the latent danger and that Saladino was not a knowledgeable user.

Product LiabilityFailure to WarnNegligenceQuadriplegia InjuryBaggage Tractor AccidentJury VerdictMotions for ReconsiderationProximate CauseKnowledgeable User ExceptionLatent Danger
References
28
Case No. MISSING
Regular Panel Decision

Nassau Chapter of Civil Service Employees Ass'n v. County of Nassau

This case involves an appeal concerning the commencement of county service for employees initially hired under the Comprehensive Employment and Training Act (CETA) for purposes of a collective bargaining agreement between the Nassau Chapter of the Civil Service Employees Association, Inc. (plaintiff) and the County of Nassau (defendant). The plaintiff sought to include CETA employment prior to December 31, 1976, as commencement of county service under 'Plan A' of the agreement. The defendant appealed a Supreme Court judgment that had initially granted this relief. The appellate court reversed the judgment, holding that CETA employment, despite county supervision, should not be considered the commencement of county service for employment agreement purposes due to its temporary nature. The court concluded that service should only be deemed to begin when a position is obtained under Civil Service Law procedures. Consequently, CETA employees hired by the county after December 31, 1976, are excluded from Plan A, regardless of prior CETA service.

CETA EmploymentCivil Service LawCollective Bargaining AgreementCounty Service CommencementTemporary EmploymentIncremental Salary PlanPublic Sector EmploymentEmployee Benefits EligibilityAppellate DivisionNassau County
References
4
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