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

Case No. 2017 NY Slip Op 03797 [150 AD3d 930]
Regular Panel Decision
May 10, 2017

Wadlowski v. Cohen

The plaintiff, Jan Wadlowski, was injured after falling 14 feet from a balcony while performing demolition work at the defendant, Phillip Ean Cohen's, home. He initiated an action against Cohen, citing violations of Labor Law §§ 240(1), 241(6), and 200, in addition to common-law negligence. The Supreme Court denied Cohen's motion for summary judgment to dismiss the complaint. The Appellate Division, Second Department, affirmed this decision, concluding that triable issues of fact existed regarding Cohen's potential direction or control over the work and his notice of the dangerous condition.

Personal InjuryDemolition AccidentBalcony FallLabor LawHomeowner LiabilitySummary JudgmentSafe Place to WorkDirection and ControlPremises LiabilityAppellate Review
References
12
Case No. MISSING
Regular Panel Decision
Mar 23, 2012

Vasquez v. Cohen Bros. Realty Corp.

Plaintiff Theresa Vasquez brought this action against defendant Cohen Brothers Realty Corporation after her husband, David Vasquez, died during the course of his employment at a building managed by defendant. David Vasquez fell to his death from an exhaust duct after climbing out of a scissor lift while attempting to replace ceiling tiles. The plaintiff alleged defendant was liable under Labor Law § 240 (1) for failing to provide proper safety devices. Defendant cross-moved for summary judgment dismissing the claim and also moved for summary judgment arguing the action was barred by the exclusivity provision of the Workers’ Compensation Law. The Supreme Court denied both motions. On appeal, the order was modified to grant plaintiff conditional partial summary judgment on the Labor Law § 240 (1) claim and affirmed the denial of defendant's motion to dismiss based on the Workers' Compensation Law exclusivity provision, citing outstanding questions of fact regarding defendant's status as a special employer.

Labor LawScissor Lift AccidentFall from HeightWorksite SafetySummary JudgmentWorkers' Compensation ExclusivitySpecial EmployerStrict LiabilityProximate CauseSafety Devices
References
5
Case No. 2017 NY Slip Op 03868 [150 AD3d 480]
Regular Panel Decision
May 11, 2017

McMahon v. Cohen Bros. Realty Corp.

The Appellate Division, First Department, unanimously affirmed a Supreme Court order granting summary judgment to Cohen Brothers Realty Corp., thereby dismissing the complaint filed by Michael McMahon et al. The core issue was whether the injured plaintiff was a special employee of Cohen Brothers Realty Corp., which would invoke the workers' compensation law's exclusivity provision as a bar to the lawsuit. Defendant presented evidence demonstrating its control over the plaintiff's hiring, supervision, and work duties, along with providing necessary equipment and materials. Despite plaintiff's attempts to counter this with evidence showing the general employer as the payor and listed employer, the court found insufficient factual dispute to overturn the special employee determination. Consequently, the appellate court upheld the dismissal, concluding that the exclusivity provision of the Workers' Compensation Law applied.

Summary JudgmentSpecial Employee DoctrineWorkers' Compensation ExclusivityAppellate ReviewEmployment Control TestProperty Management AgreementDismissal of ComplaintLabor LawEmployer-Employee Relationship
References
3
Case No. 2015 NY Slip Op 05147 [129 AD3d 897]
Regular Panel Decision
Jun 17, 2015

Cohen v. State of New York

This case concerns Fashawn Cohen, a former correction officer, who sued the State of New York and the Department of Correctional Services (DOCS) for employment discrimination based on disability and retaliation under Executive Law § 296. Cohen sustained a work-related hand injury, received workers' compensation, and was subsequently terminated by DOCS for failing to demonstrate medical fitness to return to work. She alleged that the defendants discriminated by not providing reasonable accommodation. The Supreme Court granted the defendants' motion for summary judgment, dismissing the disability discrimination claim. On appeal, the Appellate Division, Second Department, reversed this decision, finding that Cohen's responses to the termination notice could reasonably be understood as a request for accommodation, and the defendants failed to establish a prima facie case that they engaged in a good faith interactive process to assess her needs and the reasonableness of the requested accommodation.

Disability DiscriminationEmployment LawSummary JudgmentReasonable AccommodationRetaliationCivil Service LawExecutive LawAppellate ReviewWorkers' CompensationTermination
References
2
Case No. MISSING
Regular Panel Decision
Dec 09, 2014

CELLINO & BARNES, P.C. v. LAW OFFICE OF CHRISTOPHER J. CASSAR

This appeal arises from a dispute between two law firms concerning attorney's fees. The plaintiff law firm initially represented a client in a personal injury action. The client subsequently discharged the plaintiff and retained the defendant law firms. The plaintiff then commenced an action against the defendants in Erie County, seeking attorney's fees on a quantum meruit basis and alleging frivolous and fraudulent conduct. The defendants moved to dismiss the complaint and to transfer venue. The court granted the dismissal of the second and third causes of action related to frivolous and fraudulent conduct but affirmed the denial of dismissal for the first cause of action and the denial of the motion to transfer venue.

Attorney's FeesCharging LienQuantum MeruitLegal MalpracticeFrivolous ConductFraudMotion to DismissVenue TransferCPLR 3211CPLR 510
References
13
Case No. 2019 NY Slip Op 01728
Regular Panel Decision
Mar 12, 2019

O'Dwyer v. Law Offs. of Rex E. Zachofsky, PLLC

This case involves a fee-sharing dispute between Ginarte, O'Dwyer, Gonzalez, Gallardo & Winograd, L.L.P. (plaintiff) and The Law Offices of Rex E. Zachofsky, PLLC (defendant) concerning Workers' Compensation cases. The plaintiff moved to compel discovery, and the defendants moved for partial summary judgment on the breach of contract claim. The Supreme Court initially denied both motions. On appeal, the Appellate Division, First Department, modified the order by granting the plaintiff's discovery motion, allowing access to the Workers' Compensation Board's eCase system for referred cases. The court affirmed the denial of partial summary judgment for the defendants, noting that the breach of contract claim could not be resolved as a matter of law due to evidence of the plaintiff's firm's participation. An appeal and cross-appeal from a subsequent order denying reargument were dismissed as nonappealable.

Fee-sharing agreementBreach of contractRules of Professional ConductDiscovery disputeWorkers' Compensation casesAppellate reviewSummary judgmentAttorney responsibilityE-discoveryLegal ethics
References
3
Case No. ADJ7836773
Regular
Jul 09, 2012

Francisco Flores vs. Superior Carpet Works, Inc., Preferred Employers

The Workers' Compensation Appeals Board granted reconsideration of a sanctions order against the Law Offices of John A. Mendoza. The Appeals Board is also notifying the law firm of its intention to impose additional sanctions. This is due to alleged misrepresentations of fact in the petition for reconsideration and violations of Appeals Board rules regarding attaching previously filed documents. The law firm is granted twenty days to show cause why these additional sanctions should not be imposed.

WORKERS' COMPENSATION APPEALS BOARDSANCTIONSRECONSIDERATIONDEPOSITION ATTORNEY FEESLABOR CODE SECTION 5710LABOR CODE SECTION 5813APPEALS BOARD RULESDUE PROCESSMISREPRESENTATIONSFAILURE TO RESPOND
References
0
Case No. MISSING
Regular Panel Decision
Nov 25, 2008

Barnett v. Schwartz

The plaintiffs sued their attorneys for legal malpractice concerning a lease and purchase option agreement for commercial property. The property was classified as an inactive hazardous waste disposal site, a fact the attorneys, Jeffrey Schwartz and his law firm, knew but allegedly failed to disclose to the plaintiffs, advising them to enter an "as is" agreement. Two years later, the plaintiffs discovered the environmental contamination. The attorneys then reportedly advised them to continue paying rent and exercise the purchase option, assuring a quick cleanup, which ultimately took three years. A jury found the defendants liable for malpractice for failing to inform the plaintiffs about the environmental issues and the implications of the "as is" clause. The appellate court upheld the jury's findings on liability and damages but modified the judgment to include an award of prejudgment interest to the plaintiffs.

Legal MalpracticeProfessional NegligenceEnvironmental ContaminationAs Is ClauseProperty LeasePurchase OptionProximate CauseDamagesPrejudgment InterestAppellate Review
References
30
Case No. CV 85-1664 (LDW)
Regular Panel Decision

Benvenuto v. Schneider

The case concerns the Allied Security Health & Welfare Fund and its former trustees, Daniel Cunningham and Nunzio Nicolosi, who breached their ERISA fiduciary duties. They imprudently contracted with the law firm Schneider & Taubman for a prepaid legal plan, leading to excessive payments for inadequate services. The law firm and its partner, Irwin Schneider, were found to have knowingly participated in these breaches and benefited from the overpayments. The court held all defendants jointly and severally liable to the Fund for an overpayment of $292,800. Additionally, pre-judgment interest and attorney's fees were awarded to the plaintiffs.

ERISAFiduciary DutyBreach of Fiduciary DutyEmployee Welfare Benefit PlanPrepaid Legal ServicesExcessive FeesJoint and Several LiabilityTrustee MisconductLabor LawCivil Action
References
3
Case No. 01 Civ. 6600(RLC)
Regular Panel Decision

Internet Law Library, Inc. v. Southridge Capital Management, LLC

Internet Law Library, Inc. and Hunter M.A. Carr (Internet Law) moved to consolidate two separate legal actions and sought designation as the plaintiff in the combined litigation. Cootes Drive LLC and other entities (Cootes Drive) opposed Internet Law's plaintiff designation but did not object to consolidation itself. The first action, initiated by Internet Law in Texas, alleged securities law violations and fraud by Cootes Drive regarding a Stock Purchase Agreement. The second action, filed by Cootes Drive in New York, accused Internet Law of breaching the same agreement and committing fraud. The Texas court subsequently transferred Internet Law's action to New York for potential consolidation. The court, finding common legal and factual questions and minimal risks of confusion or prejudice, granted the consolidation. Additionally, the court designated Internet Law as the plaintiff and *sua sponte* consolidated a third related case, *Brewer, et al. v. Southridge Capital Management LLC, et al.*

Consolidation of actionsRule 42(a) F.R. Civ. P.Realignment of partiesCompulsory counterclaimForum shoppingFirst-to-file ruleStock Purchase AgreementSecurities fraudBreach of contractJudicial economy
References
27
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