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

Case No. 2023 NY Slip Op 02305 [216 AD3d 630]
Regular Panel Decision
May 03, 2023

Lochan v. H & H Sons Home Improvement, Inc.

Ashram Lochan sued H & H Sons Home Improvement, Inc., 82 S 4 Associate Limited Liability Company, and Hassan Haghanegi for personal injuries sustained from falling off an unsecured ladder while painting, alleging Labor Law violations. The Supreme Court granted the plaintiff's motion for summary judgment on liability against 82 S 4 Associate Limited Liability Company and, in effect, searched the record to award summary judgment against Hassan Haghanegi, denying the defendants' cross-motion to dismiss. The Appellate Division modified the order by deleting the award of summary judgment against Hassan Haghanegi, finding it improperly searched the record. However, it affirmed the grant of summary judgment against 82 S 4 Associate Limited Liability Company, concluding the plaintiff established a prima facie case and defendants failed to raise a triable issue. The court also affirmed the denial of the defendants' cross-motion, ruling they failed to establish the plaintiff was the sole proximate cause, a recalcitrant worker, or a volunteer.

Ladder AccidentPersonal InjurySummary JudgmentAppellate ReviewLabor Law § 240(1)Sole Proximate CauseRecalcitrant Worker DefenseUnsecured LadderConstruction Site SafetyWorker Fall
References
18
Case No. MISSING
Regular Panel Decision

Miraglia v. H&L Holding Corp.

This opinion addresses post-judgment motions in a personal injury case arising from an accident where the plaintiff, an employee of Lane & Sons Construction Corp., was injured at a site owned by H&L Holding Corporation. Following a jury verdict and appellate modification, Lane moved to amend the May 4, 2005 judgment to provide for entry of judgment solely against H&L, arguing that Workers' Compensation Law § 11 prevented direct recovery against Lane by the plaintiff. Plaintiff cross-moved for an order of attachment or a constructive trust on proceeds paid to H&L by its insurer. H&L cross-moved to amend the judgment to reflect its right to judgment over against Lane for the full amount and for defense costs, based on contractual and common-law indemnification, given Lane had agreed to indemnify H&L and assumed its defense at trial. The court denied Lane's motion, ruling that amending the judgment would affect a substantial right of the plaintiff and go beyond ministerial correction permitted by CPLR 5019 (a). Plaintiff's cross-motion was also denied. H&L's cross-motion for reimbursement of costs and attorneys' fees from Lane was granted, and a hearing was scheduled to determine the amount.

Workers' Compensation LawLabor LawCPLR 5019(a)IndemnificationContractual IndemnificationCommon-Law IndemnificationPost-Judgment MotionsAmendment of JudgmentNondelegable DutyOwner Liability
References
19
Case No. 2014 NY Slip Op 08022
Regular Panel Decision
Nov 19, 2014

Matter of Sean P.H. (Rosemarie H.)

The Appellate Division, Second Department, affirmed an order of the Family Court, Richmond County, which found that the mother, Rosemarie H., permanently neglected her child, Sean P.H., terminated her parental rights, and transferred guardianship and custody to Edwin Gould Services for Children and Families and the Commissioner of the Administration for Children's Services. The mother's contentions regarding deprivation of her right to be present and ineffective assistance of counsel were rejected, as her due process rights were met and she received meaningful representation. The court found clear and convincing evidence of permanent neglect due to her failure to plan for the child's return and comply with the service plan, and determined that termination was in the child's best interests.

Parental RightsChild NeglectFamily LawAppealsDue Process RightsLegal RepresentationFoster Care SystemGuardianshipAdoptionService Plan
References
23
Case No. 2015 NY Slip Op 08836
Regular Panel Decision
Dec 02, 2015

Matter of Morgan A.H.-P. (Ta-Mirra J.H.)

This case concerns an appeal by Morgan A.H.-P., a child, from an order of the Family Court, Kings County. The Family Court order dismissed a petition filed by New Alternatives for Children (the Agency) to terminate the mother's parental rights on the ground of permanent neglect. The child was initially placed in foster care in 2010. After the child's transfer to the Agency in 2011, the permanency goal was changed from reunification to adoption, a decision contested by the mother. The Agency subsequently petitioned to terminate parental rights, relying on documentary evidence during the fact-finding hearing. The Family Court found that the Agency failed to demonstrate diligent efforts to strengthen the parent-child relationship, instead concluding that the Agency actively undermined it. The Appellate Division, Second Department, affirmed the Family Court's decision, determining that the Agency did not meet its burden of proof by clear and convincing evidence, thus upholding the dismissal of the termination petition.

Parental RightsPermanent NeglectFamily CourtAppellate ReviewChild WelfareDiligent EffortsParent-Child RelationshipTermination of Parental RightsSocial Services LawFoster Care
References
6
Case No. MISSING
Regular Panel Decision

In re H. R.

The Law Guardian for the infant H. R. filed an application seeking an order to place H. R. in the certified foster home of Mr. and Mrs. S., where his three half-siblings already reside. H. R. was born drug-positive and with syphilis, requiring special care. The Rockland County Department of Social Services opposed the placement, citing New York State Department of Social Services regulations regarding household capacity and the special needs of the children, arguing it would jeopardize the care of the other eight children in the S. home. The court, citing New York Family Court Act § 1027-a, emphasized the strong state policy of keeping siblings together and the presumption that such placement is in the child's best interests. The court found the Department's opposition to be based on speculation rather than concrete evidence of harm, and therefore insufficient to overcome the legal presumption. Consequently, the court granted the application, directing the Commissioner of Social Services to place infant H. R. with the S. foster family, with an expectation of continued monitoring by the Commissioner.

Child welfaresibling placementfoster carebest interests of the childFamily Court ActDepartment of Social Servicesdrug addictionhandicapped childrenjudicial discretionNew York law
References
3
Case No. MISSING
Regular Panel Decision
Oct 02, 2001

In re David M-H.

The case concerns an appeal by a mother from an Orange County Family Court order dated October 2, 2001. The order committed the guardianship and custody of her child, David M-H, to the Orange County Department of Social Services for adoption by foster parents, following an adjudication of permanent neglect. The Appellate Division affirmed the order, reiterating that parental rights can be terminated based on clear and convincing proof of permanent neglect. The court found that the petitioner, the Orange County Department of Social Services, demonstrated the mother's failure to plan for the child's return and disregard of agency orders despite diligent efforts, making termination in the child's best interests. Additionally, the court ruled that a caseworker's hearsay testimony was properly admitted at the dispositional hearing, being material and relevant to whether the mother violated a prior court order.

Parental Rights TerminationPermanent NeglectFamily Court ActSocial Services LawCustody and GuardianshipAdoptionAppellate ReviewClear and Convincing EvidenceDiligent EffortsHearsay Admissibility
References
2
Case No. 2005 NY Slip Op 25022
Regular Panel Decision
Jan 10, 2005

Matter of S.H.

The Onondaga County Department of Social Services petitioned the court, seeking a finding that reasonable efforts were not required to reunite the subject child, S.H., with his parents, L.G. (mother) and P.H. (father). The father had a prior conviction for a felony sex offense against a half-sibling and his parental rights to another child were involuntarily terminated. Both parents had also been adjudicated for severe and repeated abuse of S.H. and another half-sibling. The court granted the motion, finding that the parents subjected the child to aggravated circumstances and failed to prove that reunification would be in the child's best interests. This decision excused the Department from further reunification efforts.

NeglectChild AbuseParental Rights TerminationAggravated CircumstancesReunification EffortsFoster CareSexual AbuseFelony Sex OffenseLaw GuardianDomestic Violence
References
2
Case No. MISSING
Regular Panel Decision

In re Starr H.

This is a child protective proceeding under Family Court Act article 10 where Starr H. was alleged to be an abused child, sexually abused by her mother's live-in boyfriend, Paul E. Family Court initially dismissed the petition without stating grounds. The appellate court reversed, finding that Paul E. engaged in digital manipulation of Starr H.'s vagina. The finding of abuse was supported by consistent out-of-court statements from Starr H. to multiple witnesses, corroborated by medical evidence of vaginal abnormalities and expert opinions from a physician and a therapist. The case is remitted to Erie County Family Court for a dispositional hearing before a different judge.

Child Protective ProceedingSexual AbuseChild AbuseCorroborationMedical EvidenceExpert TestimonyFamily Court Act Article 10Appellate ReviewRemittalErie County Family Court
References
5
Case No. MISSING
Regular Panel Decision
Feb 02, 1984

Trump-Equitable Fifth Avenue Co. v. H.R.H. Construction Corp.

Aetna Insurance Company, as subrogee for Trump-Equitable Fifth Avenue Company, sued H.R.H. Construction Corp. and its subcontractors for fire damages during the Trump Tower construction. Defendants sought summary judgment citing a waiver of subrogation clause in the owner-contractor agreement. The Supreme Court denied this, finding inconsistency between indemnification and subrogation clauses. The appellate court reversed, ruling the clauses were consistent, the waiver of subrogation was valid and a complete bar, thus granting summary judgment for the defendants.

Construction LawSubrogationWaiver of SubrogationSummary JudgmentContract InterpretationIndemnification ClauseProperty InsuranceGeneral ContractorSubcontractor LiabilityAppellate Review
References
3
Case No. MISSING
Regular Panel Decision
Apr 20, 2004

In re Whitney H.

In three child protective proceedings, the mother appealed disposition orders from the Family Court, Queens County. The court had found she neglected her children, placing Whitney H. and Brittany J. with the Administration for Children's Services and Royesha B. with her biological father. The appeals concerning Whitney H. and Brittany J.'s placement were dismissed as academic because the placement period had expired. However, the orders of disposition regarding Whitney H. and Brittany J. were affirmed insofar as reviewed, and the order for Royesha B. was fully affirmed. The court found that the petitioner established prima facie evidence of neglect due to the mother's alcohol abuse, citing an incident where she struck Brittany J. and locked Whitney H. outside.

Child NeglectAlcohol AbuseFamily Court Act Article 10Custody PlacementPrima Facie EvidenceNegative InferenceAppellate ReviewExpired PlacementFact-Finding OrderDisposition Order
References
5
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