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

Case No. 2021 NY Slip Op 04626 [197 AD3d 518]
Regular Panel Decision
Aug 04, 2021

D. S. v. Positive Behavior Support Consulting & Psychological Resources, P.C.

This case involves an appeal by the Port Jefferson School District from an order denying its motion to dismiss a personal injury complaint. The infant plaintiff, a special education student, was allegedly injured by a therapist, Vito Silecchia, during a behavioral therapy session. The plaintiffs sued the School District, among others, alleging Silecchia was an employee or agent. The District contended Silecchia was an independent contractor retained through Positive Behavior Support Consulting and Psychological Resources, P.C. The Appellate Division affirmed the Supreme Court's denial of the dismissal motion, stating that the complaint adequately stated a cause of action and that documentary evidence did not conclusively establish an independent contractor relationship, given provisions in the agreement suggesting the District maintained some control over the services.

Personal InjuryRespondeat SuperiorIndependent ContractorMotion to DismissAppellate ReviewVicarious LiabilitySchool District LiabilitySpecial EducationTherapist NegligenceCPLR 3211 (a) (1)
References
25
Case No. MISSING
Regular Panel Decision
Mar 28, 2014

Gallen v. County of Rockland

This case concerns an appeal by defendants Jay L. Lombard and Brain Behavior Center-Rockland from the denial of their motion for summary judgment in a medical malpractice and wrongful death action. The plaintiff's decedent, after a suicide attempt, was discharged from Valley Hospital with a safety contract. The same day, he was seen by defendant Lombard, a neurologist, who performed a suicide assessment, prescribed medication, and concluded there was no immediate risk, but the decedent committed suicide a week later. The Supreme Court denied the defendants' motion for summary judgment, and the appellate court affirmed, finding a triable issue of fact regarding whether Lombard departed from good medical practice by failing to obtain prior records and conducting an inadequate suicide assessment.

Medical MalpracticeWrongful DeathSuicide AssessmentNeurologist LiabilitySummary JudgmentAppellate ReviewStandard of CareProximate CausePatient DischargePsychiatric Treatment
References
6
Case No. ADJ685961 (VEN 0120428) ADJ3005615 (PAS 0035964)
Regular
Aug 06, 2018

STEPHANIE CURRY vs. PACIFIC CARE BEHAVIORAL HEALTH CARE, INC., THE TRAVELERS INSURANCE COMPANY, ROSEMARY COTTAGE, CALIFORNIA INSURANCE GUARANTEE ASSOCIATION, FREMONT INDEMNITY COMPANY, SEDGWICK CLAIMS MANAGEMENT SERVICES

Applicant Stephanie Curry suffered industrial injuries from employment with Pacific Care Behavioral Health Care, Inc. and Rosemary Cottage, leading to disputes regarding the scope of injury and compensation. The Workers' Compensation Appeals Board (WCAB) granted reconsideration of prior awards against CIGA and Travelers Insurance Company. Ultimately, the parties entered into a Compromise and Release agreement, which the WCAB approved, resolving all claims for a settlement payment of $1,363,071.00 from Travelers to applicant, thereby rescinding the prior findings and awards.

Workers' Compensation Appeals BoardStephanie CurryPacific Care Behavioral Health CareInc.Fremont Indemnity CompanyliquidationSedgwick Claims Management Servicesconsequential injurynew and further disabilitytemporary partial disability
References
0
Case No. MISSING
Regular Panel Decision

Sullivan v. Harnisch

This dissenting opinion, penned by Chief Judge Lippman, argues against the majority's decision, which he believes unduly narrows the Wieder exception to at-will employment. Lippman contends that compliance officers in the financial services industry, like the plaintiff Sullivan, deserve protection from retaliatory termination for performing their statutorily mandated duties, similar to attorneys in law firms. He highlights the dangers of unchecked abuses in financial schemes, citing the Madoff scandal, and warns that the majority's ruling could facilitate fraud by discouraging compliance officers from reporting illegal and unethical behavior. The dissent asserts that the common law, through the Wieder exception, should provide this protection without needing new statutory remedies, and that the order should be reversed to reinstate the plaintiff's cause of action.

whistleblower protectionat-will employmentcompliance officersfinancial services industrysecurities lawMadoff scandalprofessional ethicscorporate governanceretaliatory terminationinvestment advisers
References
3
Case No. MISSING
Regular Panel Decision

Scheidt v. Oberg

This case is an appeal from an order granting summary judgment to the defendants in a dog bite incident. The plaintiff sued after being bitten by the defendants' dog, Ziggy. To recover, the plaintiff needed to prove that the dog had vicious propensities and that the owners knew or should have known of them. The defendants presented evidence of no prior aggressive behavior or complaints. While the plaintiff described Ziggy barking, growling, and eventually biting him, he failed to provide evidence of the dog's known prior aggressive behavior or the owners' knowledge. A witness also testified to aggressive behavior but admitted not reporting it to the owners. The Supreme Court's decision to grant summary judgment to the defendants was affirmed due to the plaintiff's failure to meet the burden of proof regarding the dog's vicious propensities and the owners' knowledge.

Dog biteAnimal attackVicious propensitiesOwner knowledgeSummary judgmentAppellate reviewBurden of proofPrior aggressive behaviorSaratoga CountyCourt of Appeals
References
6
Case No. MISSING
Regular Panel Decision
May 05, 2009

In re the Claim of Messado

The claimant, a clerical worker, was discharged from a city agency for misconduct after confronting a coworker in a threatening manner and using profanity, despite previous warnings for similar behavior. The Unemployment Insurance Appeal Board denied his claim for unemployment insurance benefits. On appeal, the decision was affirmed, with the court finding substantial evidence to support the Board's finding of disqualifying misconduct. The court noted that threatening behavior toward a coworker constitutes misconduct and upheld the Board's resolution of credibility issues presented by conflicting testimonies.

Unemployment InsuranceMisconductTermination of EmploymentThreatening BehaviorProfanityCredibility IssueCoworker DisputeWorkplace ConductPrior WarningsAppellate Review
References
3
Case No. MISSING
Regular Panel Decision
Jul 22, 1999

In re the Claim of Petrocelli

The claimant was dismissed from her bookkeeper position after threatening a co-worker, a behavior she had been reprimanded for earlier. The Unemployment Insurance Appeal Board ruled that her employment was terminated due to misconduct, disqualifying her from receiving unemployment insurance benefits. The appellate court affirmed this decision, finding substantial evidence supported the Board's conclusion. It noted that continuous threatening or harassing behavior despite employer warnings constitutes disqualifying misconduct. The court also clarified that the claimant's differing account of events merely created a credibility issue for the Board to resolve, which it was entitled to do.

Unemployment benefitsMisconductWorkplace threatsHarassmentEmployee dischargeCredibility issueAdministrative appealAppellate DivisionUnemployment Insurance LawEmployer warnings
References
5
Case No. MISSING
Regular Panel Decision
Jun 13, 1997

In re the Claim of Madden

Claimant was suspended from her employment as a typist due to disruptive, insubordinate, and threatening behavior, following prior warnings. An arbitration hearing confirmed the suspension was warranted based on threats made to co-workers and a history of disruptive conduct. The Unemployment Insurance Appeal Board adopted these findings, ruling that claimant was disqualified from receiving unemployment insurance benefits. The appellate court affirmed the Board's decision, stating that threats and disruptive behavior in the workplace constitute misconduct and that the Board's decision was supported by substantial evidence. Claimant's remaining contentions were reviewed and found without merit.

unemployment insurancemisconductsuspensiondisruptive behaviorinsubordinationthreatsarbitrationappellate reviewsubstantial evidenceBoard decision
References
2
Case No. MISSING
Regular Panel Decision
Oct 21, 1982

In re the Claim of Caryl

The claimant was terminated for misconduct following a company awards dinner. During the event, he admittedly consumed a significant amount of alcohol, engaged in disruptive behavior including throwing objects, harassing waitresses, and making obscene gestures and insulting comments to speakers. He also attempted to assault a superior and threatened another, leading to his arrest. The Unemployment Insurance Appeal Board initially granted benefits, deeming the misconduct not 'in connection with' his employment. However, the court reversed this, ruling that the employer-sponsored event was indeed connected to employment, and employees must uphold behavioral standards even off-duty, thus disqualifying the claimant from benefits.

misconductunemployment insuranceemployee terminationcompany eventoff-duty conductintoxicationworkplace behaviorappeal boardemployer responsibilityemployee obligations
References
7
Case No. MISSING
Regular Panel Decision

Fox Industries, Inc. v. Gurovich

The defendant, Leonid Gurovieh (also known as Leo Gore), filed a motion to compel Judge Platt to disqualify himself from the case, citing alleged partiality under 28 U.S.C. § 455(a). Gore's motion was based on remarks made by the judge during previous proceedings. The judge denied the motion for recusal, stating that his reactions, including expressions of disapprobation and anger, were a direct result of the "outlandish behavior" of both Gore and his counsel, Simon Schwarz, Esq. This behavior included violations of court orders, failure to appear, attempts to suborn perjury, and obstruction of court orders. The court found that no objective observer would reasonably question its impartiality and affirmed that its rulings were based on the facts presented, not on bias.

RecusalDisqualificationJudicial ConductJudicial ImpartialityBiasPrejudiceContempt of Court28 U.S.C. § 455(a)Federal JudgeMotion Denial
References
6
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