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

Case No. 93 CV 4888 (ADS)
Regular Panel Decision

Wenzel v. Nassau County Police Department

The plaintiff, Mary Ann Wenzel, a former Nassau County Police Officer, sued the Nassau County Police Department under 42 U.S.C. § 1983, alleging civil rights violations and intentional infliction of emotional distress. The defendants sought dismissal, claiming the statute of limitations had expired. Wenzel argued for tolling the statute due to insanity under CPLR § 208. Magistrate Judge Viktor V. Pohorelsky recommended against tolling, finding Wenzel capable of protecting her legal rights. District Judge Spatt adopted this recommendation, ruling that Wenzel did not meet the "insanity" criteria for tolling the statute of limitations. Consequently, the defendants' motion for judgment on the pleadings was granted, and the case was dismissed.

Civil RightsStatute of LimitationsTolling ProvisionInsanity Defense42 U.S.C. Section 1983CPLR Section 208Federal Rules of Civil ProcedureJudicial ReviewMotion to DismissDepression
References
9
Case No. MISSING
Regular Panel Decision
Aug 15, 1988

Commissioners of the State Insurance Fund v. Warner

In this case, the plaintiff sought to recover premiums for workers' compensation insurance from defendant Jack Warner, associated with Whoopee National Company. Warner disputed his affiliation and moved for dismissal, citing the six-year Statute of Limitations (CPLR 213) for the action commenced in March 1988, covering the period 1980-1981. The plaintiff countered that 22 part payments made by Warner between 1983 and 1987 served to toll the statute. The IAS court denied Warner's motion for summary judgment, determining that there were genuine issues of material fact regarding Warner's precise role with Whoopee and whether the part payments satisfied the legal criteria to toll the Statute of Limitations, as per precedent requiring an unqualified acknowledgment of debt.

Summary JudgmentStatute of LimitationsWorkers' Compensation InsurancePremium RecoveryPart PaymentsTolling Statute of LimitationsTriable Issues of FactContract DisputeAffirmed DecisionCivil Procedure
References
2
Case No. MISSING
Regular Panel Decision

Kotlyarsky v. New York Post

Plaintiffs Boris and Alla Kotlyarsky and Reliable Rehabilitation Center, Inc. sued defendants New York Post, NYP Holdings, Inc., Susan Edelman, and Devlin Barrett for libel. The action stemmed from a December 11, 2000 article in the New York Post that alleged Boris Kotlyarsky was under federal indictment and described Reliable Rehabilitation Center as a 'medical mill.' Plaintiffs claimed they were promised a retraction, which was later withdrawn, leading them to delay filing their lawsuit until August 12, 2002. Defendants moved for summary judgment, arguing the one-year statute of limitations for libel had expired on December 12, 2001. Plaintiffs invoked equitable estoppel, equitable tolling, and promissory estoppel to argue the statute was tolled. The court found that plaintiffs failed to demonstrate due diligence in pursuing the retraction and thus, the doctrines of estoppel or tolling were not applicable. Consequently, the defendants' motion for summary judgment was granted, dismissing the complaint as time-barred.

defamationlibelstatute of limitationsequitable estoppelequitable tollingpromissory estoppelsummary judgmentdue diligenceretractionNew York Law
References
15
Case No. MISSING
Regular Panel Decision

Hernandez v. William J. Scully, Inc.

This case involves a plaintiff who allegedly sustained personal injury during construction work at 1155 Avenue of the Americas, New York, New York, on May 26, 1983. The plaintiff initially sued William J. Scully, Inc., the construction manager, and Tishman Realty Construction, the drywall contractor, in April 1984. The current motion was filed by defendants 1155 Avamer Realty Corp. and 1155 Development Corp., allegedly the owners of the premises, seeking to dismiss the claims against them on Statute of Limitations grounds. The court examined whether service on Scully and Tishman tolled the Statute of Limitations for the moving defendants due to unity of interest, particularly under Labor Law § 240 and § 241, which impose nondelegable duties on owners. The court found that if unsafe conditions were created by Scully or Tishman, the owners would be vicariously liable, establishing a unity of interest. Therefore, timely service on Scully and Tishman also tolled the Statute of Limitations for the moving defendants, and the motion to dismiss was denied.

Statute of LimitationsVicarious LiabilityLabor Law § 240Labor Law § 241Construction AccidentPersonal InjuryUnity of InterestMotion to DismissOwners LiabilityScaffolding Safety
References
4
Case No. MISSING
Regular Panel Decision

Dumas v. Agency for Child Development-New York City Head Start

Plaintiff Dumas was discharged from her employment as director of the Head Start program operated by defendants The Children’s Aid Society (CAS) and the Agency for Child Development. She filed a pro se complaint alleging employment discrimination based on race and sex, citing violations of federal statutes and asserting state law claims. Defendants moved to dismiss the complaint, arguing that federal claims were time-barred by the three-year statute of limitations, as the discharge occurred on August 15, 1975, and the action was filed on August 12, 1981. Dumas contended the statute was tolled due to mental disability ("insanity") under New York CPLR § 208, claiming it persisted until August 1978. The court, however, found Dumas's activities, including holding a supervisory job and seeing patients as a therapist, inconsistent with the severe incapacitation required for the insanity toll. Dr. Stephenson's medical report also did not support a finding of continuous incapacitation. Therefore, the court granted the defendants' motions to dismiss the complaint.

Employment DiscriminationStatute of LimitationsMental Disability TollInsanity TollCPLR 208Federal Claims DismissalState Law ClaimsHead Start ProgramRace DiscriminationSex Discrimination
References
7
Case No. AHM 0080703
Regular
Jul 20, 2007

LOC TRAN vs. VIET NGUYEN TRUCKING CO., AMERICAN ALL RISK LOSS ADMINISTRATORS

The Workers' Compensation Appeals Board granted reconsideration, rescinding the prior order that disallowed a lien claim. The Board found that the statute of limitations for the lien claim might be tolled because the defendant failed to serve the lien claimant with the Compromise and Release agreement. The case is returned to the trial level to determine if the lien claimant provided proper written notice of its claim to the defendant prior to the settlement, which would necessitate compliance with notice rules and potentially toll the statute of limitations.

Labor Code § 4903.5Labor Code § 4904(a)WCAB Rule 10886WCAB Rule 10888WCAB Rule 10890statute of limitationstollingCompromise and Releaselien claimantservice of documents
References
3
Case No. ADJ7204145
Regular
Nov 09, 2016

RALPH WENZEL vs. SAN DIEGO CHARGERS, ZENITH INSURANCE COMPANY

This case involves a workers' compensation claim by a former professional football player alleging cumulative injury to his head, brain, and psyche. The administrative law judge found the claim barred by the statute of limitations, as the application was filed almost eight years after the determined date of injury. The applicant contended the statute was tolled due to his alleged mental incompetence. The Appeals Board has granted reconsideration to further develop the record, deferring the decision on tolling under Labor Code section 5408 pending expert opinion on the applicant's mental competency during the relevant period.

Workers' Compensation Appeals BoardSan Diego ChargersZenith Insurance CompanyPetition for Reconsiderationstatute of limitationsLabor Code section 5412Labor Code section 5405(a)Labor Code section 5408mental incompetencytolling
References
6
Case No. ADJ8 440661 ADJ8954872 ADJ8954861
Regular
Mar 18, 2016

CRAIG GROTH vs. COASTLAND, INC. dba COAST LANDSCAPE, BRECKENRIDGE INSURANCE SERVICES, LLC, AMTRUST NORTH AMERICA

The Workers' Compensation Appeals Board granted reconsideration and amended the prior award, finding the applicant's dog bite injury claim (ADJ8440661) was not barred by the statute of limitations. This decision reversed the trial judge's finding, holding that the employer's failure to inform the applicant of his workers' compensation rights tolled the statute until the claim was officially reported. The Board found prejudice to the applicant without tolling and rejected the defendant's argument regarding prejudice to the carrier, noting the insurer retains credit rights. The case is returned to the trial level for further proceedings on other issues related to ADJ8440661.

Workers Compensation Appeals BoardCumulative InjuryStatute of LimitationsTollingEmployer Duty to InformDog BiteLandscape Construction WorkerReconsiderationJoint Findings and AwardMedical Legal Costs
References
8
Case No. MISSING
Regular Panel Decision

In re the Claim of Uhler v. A & P

Claimant suffered electrocution injuries in 1981, initially affecting his left hand and later manifesting as brain trauma. In 1989, the Workers' Compensation Board reopened the case, finding that the Statute of Limitations was tolled due to the claimant's mental incompetency, which stemmed from the electrocution. The Board awarded workers' compensation benefits for the brain trauma and absolved the Special Fund for Reopened Cases from liability. The employer appealed, but the court affirmed the Board's findings, citing substantial evidence of mental incompetence, the tolling of the Statute of Limitations, and the claimant's total disability. The court also agreed that Workers’ Compensation Law § 25-a was inapplicable.

Mental IncompetencyStatute of LimitationsBrain TraumaElectrocution InjuryTotal DisabilityMedical Expert TestimonyWorkers' Compensation BenefitsSpecial Fund LiabilityPersonality DisorderMemory Loss
References
3
Case No. ADJ9456228 (MF), ADJ9341963
Regular
Oct 09, 2018

MARIA COLCHADO vs. TOLL GLOBAL FORWARDING HOLDING, ACE AMERICAN INSURANCE, SELECT STAFFING, ACE AMERICAN INSURANCE, TRI-STATE STAFFING, CIGA administered by SEDGWICK for LUMBERMEN'S UNDERWRITING in liquidation

The Workers' Compensation Appeals Board granted reconsideration to determine Toll Global Forwarding's employer status. While the ALJ found Toll Global was not a special employer, the Board reversed this, finding Toll Global was indeed the special employer. This determination was based on Toll Global's direct supervision and instruction of the applicant. The staffing agencies, Select Staffing and Tri-State Staffing, were designated as the general employers.

Workers' Compensation Appeals BoardCIGASpecial EmployerGeneral EmployerToll Global ForwardingSelect StaffingTri-State StaffingACE American InsuranceJoint Findings and OrderPetition for Reconsideration
References
11
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