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

Case No. 2019 NY Slip Op 09339 [178 AD3d 1320]
Regular Panel Decision
Dec 26, 2019

WSA Group, PE-PC v. DKI Eng'g & Consulting USA PC

WSA Group, PE-PC, an appellant-respondent, sued DKI Engineering & Consulting USA PC, a respondent-appellant, for negligent supervision and breach of contract arising from a subcontract to inspect state bridges. The dispute stemmed from a defendant's employee falsifying an inspection report, leading to costs for the plaintiff that the defendant refused to indemnify. The Supreme Court partially granted defendant's motion to dismiss, deeming the negligent supervision and part of the breach of contract claims time-barred under a three-year professional malpractice statute of limitations. However, it allowed the contractual indemnification claim related to reimbursement to DOT under a six-year breach of contract limitation. The Appellate Division affirmed that the malpractice-related claims were time-barred, accruing upon the completion of the contract in May 2014. Crucially, the Appellate Division reversed the dismissal of the plaintiff's claim for counsel fees and investigation costs, finding that this aspect of the indemnification claim was not subject to the three-year malpractice limitation and fell within the broad scope of the contractual indemnification agreement.

Professional MalpracticeBreach of ContractStatute of LimitationsIndemnification ClauseNegligent SupervisionSubcontract AgreementEngineering ServicesAccrual of ActionAppellate ReviewContractual Obligation
References
15
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
Jul 30, 2012

Matter of Monarch Consulting, Inc. v. National Union Fire Ins. Co. of Pittsburgh, PA.

Justice Gische dissents from the majority's decision, arguing that arbitrators, not the court, should determine the enforceability of payment agreements containing arbitration clauses in workers' compensation cases. The dissent highlights that the payment agreements were not filed with the Workers’ Compensation Insurance Rating Bureau (WCIRB), an issue the insureds use to invalidate the arbitration provisions. Citing the Federal Arbitration Act (FAA) and Supreme Court precedent, Gische, J. contends that challenges to the contract as a whole should be decided by arbitrators. Furthermore, the dissent disagrees with the majority's application of the McCarran-Ferguson Act, asserting that California law does not prohibit arbitration in insurance disputes and that arbitration does not undermine filing requirements. The dissent critiques the Ceradyne decision as inconsistent with Supreme Court rulings on severability and arbitrability.

Arbitration ClausesArbitrabilityFederal Arbitration ActMcCarran-Ferguson ActWorkers' Compensation InsuranceCalifornia Insurance CodeContract EnforceabilityGateway IssuesDissenting OpinionJudicial Review
References
17
Case No. MISSING
Regular Panel Decision
Feb 23, 2011

EF Consulting LLC v. General Electric Capital Corp.

The appellants, EF Consulting LLC and Oasis HC LLC, appealed a Bankruptcy Court's dismissal of their adversary complaint against General Electric Capital Corporation (GECC). The complaint alleged various claims, including fraud and conversion, stemming from GECC's use of lockbox funds and a Medicaid retroactive adjustment payment to satisfy outstanding debts on a revolving line of credit extended to debtors Highgate LTC Management, LLC, and Highgate Manor Group, LLC. Following the debtors' default and bankruptcy, Long Hill and later EF Consulting LLC served as receivers for the nursing home operations. The central issue was whether GECC was authorized to apply accounts receivable to its loans before other receivership expenses were paid. The District Court affirmed the Bankruptcy Court's decision, concluding that GECC's actions were consistent with the loan documents, purchase agreement, foreclosure court orders, and bankruptcy court orders, which allowed GECC to use the lockbox funds as collateral and to reduce the principal on the loans.

Bankruptcy AppealReceivership LawSecured LendingLockbox FundsAccounts ReceivableMedicaid ReimbursementForeclosure ActionLoan AgreementsCash CollateralDebtor-Creditor Relations
References
3
Case No. MISSING
Regular Panel Decision
Dec 19, 2005

G.K. Alan Assoc., Inc. v. Lazzari

This case involves an action by G.K. Alan Assoc., Inc. (Alan) against Derval Lazzari (Lazzari) to enforce a consulting agreement. Lazzari asserts Alan was a "faithless agent" due to alleged insurance fraud against corporations in which Lazzari purchased stock, arguing this forfeits Alan's right to compensation under the consulting agreement. Alan counter-argues that the consulting agreement was part of the stock purchase price, making misconduct irrelevant, and that Lazzari was aware of the alleged fraud. The court examines the "faithless agent" rule, determining that forfeiture applies only to compensation for services rendered to the disloyal principal and is subject to apportionment if performance on other duties is untainted. The court found triable issues of fact, precluding summary judgment for Lazzari on his "faithless agent" defense. Consequently, the Supreme Court's order granting Lazzari's motion for summary judgment dismissing the complaint was reversed, and the matter was remanded, while an earlier order granting Lazzari leave to amend his answer was affirmed.

Faithless Agent RuleAgency LawConsulting AgreementInsurance FraudSummary Judgment MotionBreach of LoyaltyContract EnforcementCorporate LawAppellate ReviewForfeiture of Compensation
References
45
Case No. MISSING
Regular Panel Decision

Domino v. Professional Consulting, Inc.

Gregory Domino, a carpenter employed by Carlin Contracting Co., Inc., was injured while working on a Village of Mount Kisco water treatment facility, allegedly due to the installation of floor panels hoisted by a crane owned by Smedley Crane Service, Inc. He and his wife commenced an action for personal injuries against Professional Consulting, Inc. (PCI), the construction manager, and Smedley. The Supreme Court initially granted summary judgment to PCI, finding it was not a "contractor" or "owner" under Labor Law sections 240(1) or 241, nor liable under Labor Law section 200 or common-law negligence due to lack of supervisory authority. The appellate court affirmed this part of the decision, noting PCI's contracts expressly precluded it from supervising the work or safety procedures. However, the Supreme Court erred in granting summary judgment to Smedley, as Smedley failed to establish it lacked authority to control or supervise the crane's rigging activity, thus the appellate court reversed that portion of the decision.

Construction AccidentLabor LawSummary JudgmentReargumentConstruction Manager LiabilityCrane OperationWorker SafetyAgency LawStatutory LiabilityPremises Liability
References
12
Case No. MISSING
Regular Panel Decision
Nov 18, 2004

Claim of Shanbaum v. Alliance Consulting Group

The claimant, a software solution architect for Alliance Consulting Group, sustained an injury on September 11, 2001, while evacuating her apartment located across from her employer's World Trade Center office after the terrorist attacks. Her employer provided and paid for the apartment, which also served as a remote workspace equipped with a company laptop for accessing the main server. On the morning of the incident, the claimant had logged onto her computer, checked work emails, and begun preparing for a meeting. The Workers’ Compensation Board determined that the apartment functioned as an extension of the employer’s office and that the injury arose within the scope of her employment. This decision was subsequently affirmed on appeal.

Workers' CompensationScope of EmploymentAccidental InjuryTelecommutingHome OfficeWorld Trade Center AttacksSeptember 11Employer LiabilityArising Out Of EmploymentCourse Of Employment
References
2
Case No. 2022 NY Slip Op 06389 [210 AD3d 1448]
Regular Panel Decision
Nov 10, 2022

Smith v. MDA Consulting Engrs., PLLC

Nicholas Smith sued MDA Consulting Engineers, PLLC, for injuries sustained after falling from a foundation wall during construction, alleging Labor Law and common-law negligence violations. The Supreme Court initially denied the defendant's motion for summary judgment. However, the Appellate Division, Fourth Department, reversed this decision. The appellate court determined that the defendant was not an owner, contractor, or statutory agent of the Town, and therefore lacked supervisory control over the work or safety measures, absolving them of liability under Labor Law and common-law negligence. Consequently, the defendant's motion for summary judgment was granted, and the plaintiff's complaint was dismissed.

Labor LawSummary JudgmentAppellate ReviewAgency RelationshipConstruction AccidentFall InjurySupervisory ControlCommon-Law NegligenceStatement of Material FactsStatutory Agent
References
17
Case No. MISSING
Regular Panel Decision

GBJ Corp. v. Sequa Corp.

GBJ Corporation, a Delaware corporation providing consulting services, sued Sequa Corporation, Sequa Capital Corporation (SCC), and BT Securities Corporation New York. GBJ alleged that its consulting agreement with SCC, which entitled it to 10% of the residual value of leased equipment, constituted an "investment contract" under federal securities law, making it a "forced seller" of securities. GBJ claimed defendants violated federal securities laws by not disclosing its interest when selling leveraged leases. The court, presided by District Judge Haight, dismissed the first cause of action for lack of subject matter jurisdiction, concluding that the consulting agreement was an employment contract, not an investment contract or security, and therefore federal securities laws did not apply. The court also dismissed the remaining state and common law claims without prejudice.

Securities Exchange Act of 1934Investment ContractSubject Matter JurisdictionRule 12(b)(1) Federal Rules of Civil ProcedureForced Seller DoctrineSection 10(b)SEC Rule 10b-5Federal Securities LawsLeveraged LeasesResidual Value
References
19
Case No. 2018 NY Slip Op 00218 [157 AD3d 1116]
Regular Panel Decision
Jan 11, 2018

Matter of Joseph v. Atelier Consulting LLC

Claimant Brad Joseph, a construction worker, sought workers' compensation benefits after fracturing his foot while working at a construction site, naming George Villar/Atelier Consulting LLC as his employer. An investigation revealed Atelier was exempt from coverage and lacked workers' compensation insurance at the time of the accident. The Workers' Compensation Law Judge determined an employer-employee relationship existed between Atelier and Joseph, holding Omega Construction Group, Inc., the general contractor, responsible for awards and imposing a $36,000 penalty on Atelier for failing to secure insurance. The Workers' Compensation Board affirmed this decision. The Appellate Division, Third Department, affirmed the Board's decision, finding substantial evidence supported the employer-employee relationship and no error in the Board's refusal to consider an affidavit from Villar.

Workers' CompensationEmployer-Employee RelationshipConstruction AccidentInsurance CoveragePenalty ImpositionSubstantial EvidenceAppellate ReviewAffidavit AdmissibilityCross-Examination RightsGeneral Contractor Liability
References
5
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