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

Case No. 2016 NY Slip Op 02654
Regular Panel Decision
Apr 06, 2016

Matter of Dayannie I. M. (Roger I. M.)

The Appellate Division, Second Department, affirmed a Family Court order which found Roger I.M. abused and neglected his daughter, Eyllen I.M., and derivatively abused his other children: Dayannie I.M., Hillary I.M., Keyri I.M., and Jackzenny I.M. The court found that the Suffolk County Department of Social Services presented sufficient evidence, including Eyllen's consistent out-of-court statements, expert testimony, and Roger I.M.'s written confession of sexual abuse. The Appellate Division upheld the Family Court's credibility assessment, rejecting the appellant's and the children's mother's disputes. The court also affirmed the derivative abuse findings for the other children, noting that a child's recantation does not necessarily invalidate prior abuse allegations, especially when pressured or if there is expert testimony indicating a false recantation.

Child AbuseChild NeglectFamily LawAppellate ReviewSexual AbuseCredibilityRecantationExpert TestimonyParental RightsSuffolk County Family Court
References
26
Case No. 2017 NY Slip Op 07357
Regular Panel Decision
Oct 19, 2017

Matter of Kathleen NN. (Dennis NN.)

This case involves three neglect proceedings initiated by the Sullivan County Department of Family Services and the Attorney for the Child against Dennis NN. (father), Justin EE. (mother's boyfriend), and Angelica FF. (mother) concerning Kathleen NN., an alleged neglected child. The Family Court of Sullivan County initially dismissed all three petitions. The Appellate Division, Third Department, reversed the dismissal concerning Dennis NN., finding that his actions of dropping the child during an altercation placed her in imminent danger of harm, thus granting the neglect petition against him and remitting the matter for a dispositional hearing. However, the Appellate Division affirmed the dismissals against Justin EE. and Angelica FF., concluding that there was insufficient evidence to prove neglect or that Justin EE. was a legal custodian at the time of the incident, and that the mother's conduct did not demonstrate imminent danger to the child.

Child NeglectFamily Court ActImminent DangerParental ResponsibilitySafety Plan Non-ComplianceAppellate DivisionChild CustodyPreponderance of EvidencePhysical AltercationChild Protective Report
References
17
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. 120 AD3d 1323
Regular Panel Decision
Sep 17, 2014

Tara N.P. v. Western Suffolk Board of Cooperative Educational Services

The plaintiff, Tara N.P., commenced an action to recover damages for personal injuries after being sexually assaulted by Larry I. Smith, a level three sex offender, at a facility where she was attending a GED course. Smith was referred to the facility by the Suffolk County Department of Labor as part of a 'welfare to work' program, despite an agreement that the facility would not accept individuals with criminal records. The Department of Labor allegedly failed to disclose Smith's criminal background. The appellants (County of Suffolk, Suffolk County Department of Social Services, and Suffolk County Department of Labor) moved for summary judgment dismissing the complaint and all cross claims against them, asserting governmental immunity. The Supreme Court denied their motion. The Appellate Division modified the order, granting summary judgment to the appellants on the complaint against them, finding no special duty owed to the plaintiff. However, the Court affirmed the denial of summary judgment on the cross-claims, citing a triable issue of fact as to whether the appellants breached a duty of care to NACEC.

Personal InjuryGovernmental ImmunitySpecial DutySummary JudgmentContribution ClaimSex OffenderNegligenceDepartment of LaborSexual AssaultAppellate Review
References
8
Case No. 2014 NY Slip Op 08848 [123 AD3d 933]
Regular Panel Decision
Dec 17, 2014

Public Service Mutual Insurance v. Fiduciary Insurance Co. of America

This case involves an appeal by Fiduciary Insurance Company of America (appellant) from an order and judgment confirming an arbitration award in favor of Public Service Mutual Insurance Company (respondent), as subrogee of Peter Daversa. The Supreme Court, Queens County, granted the petition to confirm and denied Fiduciary's cross-petition to vacate the arbitration award. The Appellate Division, Second Department, dismissed the appeal from the intermediate order, finding it merged into the judgment, and affirmed the judgment. The court applied closer judicial scrutiny to the compulsory arbitration award, determining that the arbitrator's decision had ample evidentiary support and was not arbitrary or capricious. The appellant's contentions regarding proximate cause, burden of proof, and prejudgment interest were found to be without merit.

Arbitration Award ConfirmationInsurance SubrogationAppellate ReviewJudicial ScrutinyEvidentiary SupportArbitrator's DeterminationProximate CausationBurden of ProofPrejudgment InterestCPLR Article 75 Proceeding
References
8
Case No. 2018 NY Slip Op 08737
Regular Panel Decision
Dec 20, 2018

NYAHSA Servs., Inc., Self-Insurance Trust v. Recco Home Care Servs., Inc.

This case concerns an appeal from an order of the Supreme Court in Albany County. Plaintiff NYAHSA Services, Inc., Self-Insurance Trust, a self-insured trust providing workers' compensation coverage, sued defendant Recco Home Care Services, Inc. for unpaid adjustments after the defendant terminated its membership. Following an amendment to the complaint adding individual trustees as plaintiffs, the defendant asserted counterclaims for fraud, breach of fiduciary duty, and negligence against these trustees, which the Supreme Court dismissed as time-barred. The defendant also sought to amend its answer to include a counterclaim under General Business Law, which was denied. The Appellate Division, Third Department, found that the Supreme Court erred in dismissing the counterclaims for fraud and breach of fiduciary duty and in denying the cross-motion to amend for the General Business Law claim. Consequently, the Appellate Division modified the Supreme Court's order, reversing parts of the dismissal and denial, and affirmed the order as modified.

Workers' Compensation CoverageSelf-Insurance TrustFraud AllegationsBreach of Fiduciary DutyGeneral Business LawStatute of LimitationsAmended PleadingsCounterclaimsAppellate ReviewMotion to Dismiss
References
2
Case No. MISSING
Regular Panel Decision

Caldwell v. Toia

This CPLR article 78 proceeding involves an appeal from a judgment that reversed a determination by the Commissioner of the New York State Department of Social Services. The appellant, a public assistance recipient, was initially denied a "Support Incentive Bonus" despite having an existing assignment of support rights. The court below held she was entitled to the bonus from February 1, 1976. The appellate court found the appellant's 1973 support assignment, while not as comprehensive as the federal requirement, functioned similarly and served the legislative purposes of the bonus program. Given the practical similarity of assignments and the equities, the judgment was modified to direct the Chautauqua County Department of Social Services to pay the appellant the bonus from July 1, 1975, to May 1, 1976, plus interest.

Support Incentive BonusPublic AssistanceAid to Dependent ChildrenSupport OrdersAssignment of RightsSocial Services LawCPLR Article 78Welfare RecipientsChautauqua CountyAppellate Division
References
7
Case No. MISSING
Regular Panel Decision

Volt Technical Services Corp. v. Immigration & Naturalization Service

Plaintiff Volt Technical Services Corp. applied for H-2 visas for nuclear start-up technicians, which the Immigration and Naturalization Service (INS) denied, asserting the need was permanent, not temporary. After the denial was affirmed on appeal, Volt filed suit, alleging the INS's decision was arbitrary and capricious. The court upheld the INS's interpretation of the Immigration and Nationality Act § 101(a)(15)(H)(ii), which requires the employer's need for services to be temporary, not just the individual assignments. Finding that Volt demonstrated a recurring need for such technicians over several years, the court granted the INS's motion for judgment on the pleadings and denied Volt's.

Immigration LawH-2 visasNonimmigrant WorkersTemporary EmploymentImmigration and Nationality ActAdministrative Procedures ActDeclaratory Judgment ActAgency InterpretationJudicial ReviewNuclear Industry
References
5
Case No. MISSING
Regular Panel Decision

Lumpkin v. Albany Truck Rental Service, Inc.

This case concerns three related actions stemming from a truck accident that resulted in the death of the plaintiff's decedent, who was a passenger. Both the decedent and the driver, David L. Sinnamon, were employed by the New York State Department of Correctional Services, and the accident occurred during their employment. The original plaintiff sued General Tire and Rubber Company, Albany Truck Rental Service, Inc., and Sinnamon. Sinnamon was dismissed based on the Workers' Compensation Law. Subsequently, General Tire and Albany Truck initiated third-party actions against Sinnamon for indemnity or contribution, which were also dismissed by Special Term, citing Correction Law § 24. The Appellate Division affirmed these dismissals, ruling that Correction Law § 24 clearly bars such third-party actions against employees of the Department of Correctional Services acting within the scope of their employment. The court also rejected the appellants' equal protection challenge to the statute.

Workers' Compensation LawCorrection Law Section 24IndemnificationContributionThird-Party LiabilityGovernment ImmunityEmployee ProtectionStatutory InterpretationEqual Protection ChallengeMotor Vehicle Accident
References
3
Case No. 2019 NY Slip Op 05744 [174 AD3d 1206]
Regular Panel Decision
Jul 18, 2019

Matter of Civil Serv. Employees Assn., Local 1000, AFSCME AFL-CIO v. New York State Off. of Children & Family Servs.

The case involves Jarred Sansky, a probationary employee, terminated from his position as Cadet Leader 1 by the New York State Office of Children and Family Services. Petitioners, including Sansky and the Civil Service Employees Association, challenged the termination under CPLR article 78, arguing Sansky had completed his probationary term and was dismissed in bad faith or retaliation for reporting neglect. The Supreme Court dismissed the petition, finding Sansky was still probationary and petitioners failed to prove bad faith or retaliation. The Appellate Division, Third Department, affirmed the dismissal, holding that Sansky's temporary service in a higher position did not automatically count towards his probationary period and that allegations of bad faith or retaliation were unsupported by evidence. Therefore, Sansky, as a probationary employee, was not entitled to a pretermination hearing.

probationary employmentterminationCPLR article 78bad faith dismissalretaliationcivil service lawtemporary appointmentprovisional appointmentNew York State Office of Children and Family ServicesCadet Leader
References
10
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