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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
Nov 23, 2005

CARTIER, DIV. OF RICHEMONT v. Bertone Group

In a trademark infringement case, defendants moved to disqualify plaintiffs' litigation counsel, Tal Benschar, Esq., from serving as a 30(b)(6) deposition witness, citing New York Disciplinary Rule 5-102 which addresses the advocate-witness rule. The Court denied the defendants' motion, allowing Mr. Benschar to testify. The Court acknowledged the potential for confusion and conflicting loyalties when a lawyer acts as both a witness and an advocate, but found these dangers less likely in the pre-trial context. It also considered that Mr. Benschar was in the best position to provide the requested information, having supervised the investigation. However, the Court deferred its ruling on whether Mr. Benschar’s testimony would disqualify him from subsequently serving as trial counsel, noting that another attorney would be primary trial counsel.

Trademark InfringementDiscoveryFed.R.Civ.P. 30(b)(6)Attorney DisqualificationAdvocate-Witness RuleEthical RulesDeposition TestimonyPre-Trial ProcedureNew York LawCounsel Representation
References
2
Case No. 21-mc-102
Regular Panel Decision

Socha v. 110 Church, LLC

Plaintiffs, Marek Soeha, Jerzy Muszkatel, Tadeusz Kowalewski, Wla-dyslaw Kwasnik, and Waldemar Ropel, sought to compel expert testimony from non-retained physicians associated with the Mt. Sinai World Trade Center Medical Monitoring Program and a Workers’ Compensation physician. These "Non-Retained Experts" possess unique knowledge regarding the effects of World Trade Center dust but were unwilling to provide data or serve as expert witnesses due to time constraints and concerns about compromising neutrality. District Judge Alvin K. Hellerstein denied the plaintiffs' motion to compel depositions and amended expert disclosures, finding a lack of "substantial need" as the information was not unique and comparable witnesses were available. However, acknowledging the unparalleled scope of the Mt. Sinai WTC Health Program's research, the court ordered Mt. Sinai to produce its data, with appropriate redactions, following an established protocol.

Expert Witness DepositionMotion to CompelFederal Rules of Civil Procedure 26Non-Retained ExpertsWorld Trade Center LitigationMedical Monitoring ProgramDiscovery DisputeSubpoena Expert WitnessCausation TestimonyData Disclosure Order
References
3
Case No. MISSING
Regular Panel Decision

Morser v. AT & T INFORMATION SYSTEMS

Plaintiff Roy Morser filed an age discrimination complaint against defendant AT & T Information Systems (ATT-IS) after being laid off during a company-wide reduction-in-force. The court initially granted summary judgment in favor of ATT-IS, prompting Morser to file a motion for reargument. Morser based his motion on recent Second Circuit employment discrimination decisions, Montana and Ramseur, arguing that the court had overlooked or misapplied summary judgment standards, particularly regarding intent and drawing inferences in favor of the non-moving party. The court granted the motion for reargument, but upon reconsideration, reaffirmed its original decision to grant summary judgment to ATT-IS. The court found that its initial ruling had properly applied summary judgment standards and distinguished the facts of Morser's case from the precedents cited, noting the context of a massive layoff and lack of specific evidence of discriminatory intent.

Age DiscriminationSummary JudgmentReduction-in-Force (RIF)Rule 56 Fed.R.Civ.P.Rule 3(j) Civil Rules S.D.N.Y. & E.D.N.Y.Rule 59(e) Fed.R.Civ.P.Reargument MotionEmployment LawDisparate TreatmentSecond Circuit Precedent
References
20
Case No. MISSING
Regular Panel Decision

Moore v. Eagle Sanitation, Inc.

Plaintiffs Kevin Moore and Roger Snyder filed a lawsuit against Eagle Sanitation Inc. and Michael Reali, seeking unpaid overtime compensation under the Fair Labor Standards Act (FLSA) and New York Labor Law. They moved for conditional certification as an FLSA collective action, production of contact information for potential class members from April 2005 to April 2011, and court authorization to circulate a Notice of Pendency. The court, presided over by Magistrate Judge A. Kathleen Tomlinson, granted the motion for conditional certification, finding that the plaintiffs met the lenient evidentiary standard required at this stage. Additionally, the court granted the request for defendants to produce contact information for a six-year period to account for state law claims, emphasizing judicial economy. The court also authorized the dissemination of the proposed notice, with minor modifications regarding the inclusion of defense counsel's contact details and clarification on potential costs and discovery obligations for opt-in plaintiffs.

FLSACollective ActionOvertime CompensationNew York Labor LawConditional CertificationNotice of PendencyStatute of LimitationsDiscovery of Class MembersWage and Hour DisputeEmployment Law
References
26
Case No. MISSING
Regular Panel Decision

Spherenomics Global Contact Centers v. Vcustomer Corp.

Plaintiff Spherenomics Global Contact Centers sued defendant vCustomer Corporation for breach of a non-solicitation agreement, breach of implied covenant of good faith and fair dealing, promissory estoppel, and unjust enrichment. Spherenomics, a provider of outsourced call-center services, alleged that VCC, its subcontractor, improperly solicited and secured a long-term contract with their mutual client, Fingerhut, in violation of their November 2002 agreement. While the court found that VCC indeed breached the non-solicitation provision, it ultimately ruled in favor of VCC. The court concluded that Spherenomics failed to prove by a preponderance of the evidence that VCC's breach directly caused Spherenomics to suffer damages, specifically lost profits, deeming such claims too speculative to be recoverable under New York contract law or equitable theories.

Breach of ContractNon-Solicitation AgreementLost ProfitsDamagesCausationPromissory EstoppelUnjust EnrichmentContract LawNew York LawFederal Jurisdiction
References
32
Case No. MISSING
Regular Panel Decision

Avila v. Northport Car Wash, Inc.

Plaintiffs, car laborers, initiated an action against various car wash businesses and their owners, alleging unpaid overtime compensation under the Fair Labor Standards Act and New York State Labor Law, as well as denial of minimum wage. The plaintiffs sought conditional certification for a collective action, the production of contact information for potential class members from May 2004 through December 2010, and court authorization to circulate a notice of pendency. The Court granted the motion for conditional certification, agreeing to a six-year look-back period for contact information due to the longer state law statute of limitations, and approved the dissemination of the notice with specific modifications regarding language about potential testimony and cost liability.

FLSAOvertime CompensationMinimum WageCollective ActionConditional CertificationNew York State Labor LawOpt-in PlaintiffsStatute of LimitationsNotice of PendencyCar Wash Industry
References
19
Case No. MISSING
Regular Panel Decision

United States v. Arzberger

The government moved to modify Jason Arzberger's bail conditions, seeking to add restrictions mandated by the Adam Walsh Amendments, including a curfew, electronic monitoring, a prohibition on witness contact, and a ban on firearm possession. Arzberger challenged these amendments as unconstitutional, arguing violations of Fifth Amendment due process, Eighth Amendment excessive bail, and the separation of powers doctrine. Magistrate Judge James C. Francis IV denied the government's motion, ruling that the automatic imposition of a curfew with electronic monitoring, firearm prohibition, and witness contact ban without individualized assessment violated the Fifth Amendment's Due Process Clause. The court also indicated that the Excessive Bail Clause might be violated as applied to Arzberger, pending further hearing. The separation of powers argument was rejected. The denial was without prejudice, allowing the government to present an individualized justification for the conditions.

Bail ConditionsAdam Walsh AmendmentsChild PornographyDue ProcessFifth AmendmentEighth AmendmentExcessive Bail ClauseSeparation of PowersSecond AmendmentFirst Amendment
References
48
Case No. MISSING
Regular Panel Decision

Cruz v. LYN-ROG INC.

Plaintiffs, a group of car laborers, initiated a collective action against Lyn-Rog Inc. d/b/a The Ultimate Car Wash and Roger Lenza, seeking unpaid overtime compensation under the Fair Labor Standards Act and New York State Labor Law. They moved for conditional certification of the collective action, requesting disclosure of potential class members' contact information and authorization to distribute a notice. Defendants opposed, citing individual defenses and arguing the employees were not 'similarly situated.' The U.S. Magistrate Judge, A. Kathleen Tomlinson, granted the plaintiffs' motion, finding they met the lenient standard for conditional certification by demonstrating a common policy violating labor laws. The court also ordered the defendants to produce contact information for employees dating back six years, aligning with state law claims for judicial economy, and approved the proposed notice.

FLSAOvertime PayCollective ActionConditional CertificationUnpaid WagesLabor LawNew York State Labor LawCar Wash IndustryWage and HourClass Action
References
21
Case No. ADJ7974950, ADJ7974928, ADJ7974770, ADJ7972939
Regular
Mar 17, 2014

FERNANDO ROMAN vs. CALVARY CEMETERY, permissibly self-insured, administered by YORK INSURANCE SERVICES

The Workers' Compensation Appeals Board (WCAB) dismissed the defendant's Petition for Reconsideration because it was filed against a non-final interlocutory order. The WCJ's order compelling the defendant to provide witness contact information did not determine any substantive rights or liabilities. The WCAB also indicated that even if treated as a petition for removal, it would have been denied. The Board noted that while former employees have privacy interests, the requested discovery might be relevant to the applicant's claims of work-related stress and drug use.

Workers' Compensation Appeals BoardPetition for ReconsiderationFinal OrderInterlocutory DecisionDiscoveryWitness Contact InformationPrivacy InterestJob Related StressDrug Use AllegationsDecomposition
References
7
Case No. ADJ8574770
Regular
Jan 04, 2018

GEORGE ASAAD vs. ORACLE CORPORATION, SAFETY NATIONAL CASUALTY COMPANY

The Workers' Compensation Appeals Board (WCAB) denied the applicant's Petition for Removal. While the applicant's petition was found to be timely filed, removal is an extraordinary remedy requiring a showing of substantial prejudice or irreparable harm, which the applicant failed to demonstrate. The WCAB adopted the WCJ's reasoning that compelling the employer to reveal employee contact information for trial testimony was unwarranted. The WCJ found the proposed witness testimony was likely duplicative and irrelevant to the medical determination of industrial causation, and the applicant could present his own testimony regarding job duties.

Petition for RemovalWorkers' Compensation Appeals BoardAdministrative Law JudgeSubstantial PrejudiceIrreparable HarmReconsiderationOrder to CompelEmployee WitnessesCo-workersSubpoena
References
2
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