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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
Mar 26, 1998

In Re Bagel Bros. Bakery & Deli, Inc.

This order addresses whether Federal Rule of Bankruptcy Procedure 1014(b) imposes an automatic stay on proceedings in a subsequently-filed bankruptcy case. The case involves three Chapter 11 cases of Bagel Bros. Maple, Inc. and Bagel Bros. Deli & Bakery, Inc. in the Western District of New York, which are related to earlier Chapter 11 cases of MBC in the District of New Jersey. MBC filed a motion in New Jersey seeking to transfer venue and requested that the New York court automatically stay its proceedings based on Rule 1014(b). Bankruptcy Judge Michael J. Kaplan ruled that Rule 1014(b) does not constitute an automatic or self-executing stay upon the mere filing of a motion. Instead, a judicial determination and order from the first-filed court (District of New Jersey) are required to impose such a stay, ensuring that substantive rights are not abridged and allowing for judicial discretion in emergency matters. Therefore, the proceedings in the Western District of New York are not automatically stayed.

Bankruptcy ProcedureAutomatic StayFederal Rule of Bankruptcy Procedure 1014(b)Venue TransferChapter 11 ReorganizationInter-district BankruptcyJudicial InterventionSubstantive RightsFranchise AgreementsCash Collateral Disputes
References
12
Case No. MISSING
Regular Panel Decision
Mar 12, 1991

Downing v. B & B Machine Repair, Inc.

Plaintiff William Downing, a lumber yard worker, sued B & B Machine Repair, Inc. after severing his thumb while operating a table saw that lacked a safety guard. The plaintiff alleged negligence, claiming B & B failed to procure a replacement guard as requested by his employer 16 months before the incident. The Supreme Court, Bronx County, denied B & B's motion for summary judgment on the negligence claim, citing material issues of fact regarding the availability of replacement guards, as refuted by the plaintiff's expert. This appellate court affirmed the denial of summary judgment, finding B & B's arguments lacked merit. A dissenting opinion argued for dismissal, contending B & B's contractual obligation was vague, its actions were not the proximate cause of the injury, and the employer was primarily at fault for using an unsafe saw.

Summary JudgmentNegligenceStrict Products LiabilityWorkplace InjuryTable Saw AccidentSafety GuardProximate CauseDuty of CareContractual ObligationExpert Witness
References
3
Case No. 2021 NY Slip Op 02391 [193 AD3d 932]
Regular Panel Decision
Apr 21, 2021

Matter of Zamir F. (Ricardo B.)

The Administration for Children's Services appealed an order from the Family Court, Kings County, which had dismissed petitions alleging that Ricardo B. neglected Zamir F. through sexual abuse and derivatively neglected his other children, Elijah B., Jordan B., Jeremiah B., and Messiah B. The Appellate Division, Second Department, reversed the Family Court's order. It found that the petitioner had sufficiently established neglect and derivative neglect by a preponderance of the evidence, concluding that the testimony of the petitioner's child sexual abuse expert reliably corroborated Zamir's out-of-court statements. The court also determined that the Family Court had erred in its credibility assessment, particularly in preferring the father's expert's testimony. The matter was remitted to the Family Court for a dispositional hearing and the issuance of a dispositional order.

Child NeglectSexual AbuseDerivative NeglectFamily Court Act Article 10Corroboration of Child StatementsExpert TestimonyCredibility AssessmentAppellate ReviewParental DutiesRisk of Harm
References
8
Case No. MISSING
Regular Panel Decision

Gregory B. v. Gregory F.

This consolidated appeal addresses whether incarcerated parents "permanently neglected" their children under Social Services Law § 384-b (7) (a), thus justifying the termination of parental rights. In Matter of Gregory B., the father, incarcerated since 1980, proposed long-term foster care for his children until his release, which was rejected. Similarly, in Matter of Willie John B. and Matter of Delores B., the father, incarcerated since 1979, also offered indefinite foster care after relatives were found unwilling or unable to provide care. The Court of Appeals affirmed the termination of parental rights in all cases, holding that while 1983 statutory reforms acknowledged special circumstances for incarcerated parents, they did not excuse them from planning for their child's future. The Court concluded that indefinite foster care is not a "viable plan" as it is inconsistent with the purpose of foster care and deprives children of the essential permanency required for proper growth and development.

Permanent NeglectParental Rights TerminationIncarcerated ParentSocial Services LawFoster CareAdoptionChild WelfareFamily LawCourt of AppealsJudicial Review
References
14
Case No. MISSING
Regular Panel Decision
Sep 22, 1994

Hess v. B & B Plastics Division of Metal Cladding, Inc.

Plaintiff Carolyn K. Hess sued her former employer B & B Plastics and her union (Local 686 and UAW) for sex discrimination under the New York State Human Rights Law. She alleged discriminatory firing by B & B Plastics and discriminatory refusal by the union to pursue her grievance. The union defendants removed the case to federal court, asserting that Hess's claim against them constituted a breach of the duty of fair representation, which is preempted by the Labor Management Relations Act (LMRA). Hess moved to remand the case to state court, arguing her claims were independent state law actions. The court, citing precedent, found that Hess's state law claims against the union were completely preempted by Section 301 of the LMRA. Consequently, the plaintiff's motion to remand those claims to state court was denied, and the court retained supplemental jurisdiction over the state law claim against the employer.

Sex discriminationNew York State Human Rights LawLabor Management Relations ActLMRA Section 301Federal preemptionDuty of fair representationMotion to remandFederal question jurisdictionWell-pleaded complaint ruleCollective bargaining agreement
References
14
Case No. MISSING
Regular Panel Decision
Oct 30, 2018

Matter of Bobbi B. (Bobby B.)

This case concerns an appeal by Bobby B., the father, against an order from the Family Court, Bronx County. The Family Court found the father neglected his child, Bobbi B., by engaging in domestic violence in her presence. The court's finding was based on the testimony of a shelter worker who witnessed the father assaulting the mother while she held their one-month-old child. The Appellate Division affirmed the Family Court's decision, stating that there was no basis to overturn the credibility determinations. The court reiterated that even a single instance of domestic violence can be sufficient for a finding of neglect and properly discredited the father's denial of a domestic violence history due to a prior assault conviction and an existing order of protection.

Child neglectDomestic violenceFamily CourtAppellate DivisionCredibility determinationOrder of protectionChild endangermentThird-degree assaultInfant protectionParental neglect
References
4
Case No. 2024 NY Slip Op 01775 [226 AD3d 403]
Regular Panel Decision
Apr 02, 2024

Matter of D.B. (Larry B.)

The Appellate Division, First Department, affirmed the Family Court's finding that the respondent father, Larry B., neglected his child, D.B. The neglect was based on the father's verbal abuse, harsh behavior, and failure to address the child's serious emotional and psychological needs, including minimizing suicidal ideation and impeding medical and mental health treatment after the child's psychiatric hospitalization. The court found that a preponderance of the evidence supported the neglect finding, corroborated by the father's own testimony and a Child Protective Specialist's report, and upheld the Family Court's credibility determinations.

Child NeglectParental AbuseEmotional TraumaSuicidal IdeationMental Health TreatmentFamily Court ActAppellate ReviewCredibility AssessmentCorroboration of StatementsParental Responsibility
References
9
Case No. 12 Civ. 3763(AJN)
Regular Panel Decision

R.B. v. New York City Department of Education

Plaintiffs R.B. and M.L.B., parents of D.B., brought an action against the New York City Department of Education (DOE) seeking judicial review of an administrative decision. The State Review Officer (SRO) had previously affirmed an Impartial Hearing Officer's (IHO) decision, which found D.B.'s Individualized Education Plan (IEP) sufficient under the Individuals with Disabilities Education Act (IDEA). The parents sought tuition reimbursement for D.B.'s enrollment in a private school, challenging the IEP's procedural and substantive adequacy and the appropriateness of the DOE's assigned school placement. The District Court granted the Defendant's motion for summary judgment and denied the Plaintiffs' motion, concluding that the IEP was both procedurally and substantively adequate and the assigned school appropriate, thereby denying tuition reimbursement.

Education LawIndividuals with Disabilities Education ActFree Appropriate Public EducationIndividualized Education PlanState Review OfficerImpartial Hearing OfficerDue Process ComplaintTuition ReimbursementSummary JudgmentProcedural Adequacy
References
25
Case No. MISSING
Regular Panel Decision

J.B. v. New York City Department of Education

Plaintiff J.B., on behalf of her child K.B., sued the New York City Department of Education (DOE) under the Individuals with Disabilities Education Improvement Act (IDEA) for failing to provide a Free Appropriate Public Education (FAPE) for the 2014-2015 school year. The Parent sought tuition reimbursement for K.B.'s private school placement at the Rebecca School. Both an Impartial Hearing Officer (IHO) and a State Review Officer (SRO) ruled against the Parent, affirming the adequacy of DOE's FAPE offer. The U.S. District Court, after reviewing the procedural and substantive adequacy of K.B.'s Individualized Education Program (IEP), denied the Parent's motion for summary judgment and granted the DOE's cross-motion. The Court concluded that the DOE's recommended IEP was reasonably calculated to provide K.B. with a FAPE.

IDEAFAPEIEPSpecial EducationDisability LawAutism Spectrum DisorderTuition ReimbursementSummary JudgmentDue Process ComplaintLeast Restrictive Environment
References
29
Case No. 99-11240 B, 08-CV-774A, Adv. No. 01-1193B
Regular Panel Decision
Nov 01, 2010

McHale v. Boulder Capital LLC (In Re 1031 Tax Group, LLC)

This memorandum opinion addresses the calculation of prejudgment interest on fraudulent transfer claims recovered by Gerard A. McHale, Jr., P.A., as Trustee for the 1031 Debtors Liquidation Trust, against the Boulder Defendants. The Court determined that three transfers in 2005 and 2006 were fraudulent under section 548(a) of the Bankruptcy Code. It concludes that the Trustee is entitled to prejudgment interest from the adversary proceeding commencement date, March 20, 2009, at the bank prime loan rates in effect on the dates of each transfer (6.5%, 8.0%, and 8.25%). Additionally, the Trustee is entitled to post-judgment interest at the federal judgment rate, and a final judgment is to be entered pursuant to Federal Rule of Civil Procedure 54(b).

Prejudgment InterestFraudulent TransferBankruptcy CodeAdversary ProceedingFederal Judgment RateMarket Rate InterestPrime RateRule 54(b) JudgmentTrustee RecoveryBankruptcy Court
References
26
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