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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

Opn. No.

This legal opinion addresses whether cost-of-living adjustments paid by the New York City Transit Authority (TA) to its employees, represented by the Transport Workers Union of America (TWU), are subject to suspension under the wage freeze provisions of the Financial Emergency Act for the City of New York. The Act, enacted in 1975 to address the city's fiscal crisis, includes the TA as a 'covered organization' whose salary and wage increases are suspended. The opinion concludes that cost-of-living adjustments constitute 'salary or wages' based on common interpretation and legal precedents. Therefore, the opinion holds that such payments by the TA would violate the Act's wage freeze mandate, aligning with the legislative intent to prevent the city's financial collapse.

Wage freezeCost-of-living adjustmentsFinancial Emergency ActNew York City fiscal crisisPublic employeesCollective bargainingStatutory interpretationEmergency powersGovernmental entitiesEconomic stabilization
References
11
Case No. MISSING
Regular Panel Decision

Greece Support Service Employees Ass'n v. Public Employment Relations Board

This case concerns an appeal regarding the proper application of Civil Service Law § 209-a (1) (e) to salary provisions in an expired collective bargaining agreement between an unnamed petitioner and the Greece Central School District. The agreement, from July 1992 to June 1995, included cost-of-living adjustments for salary schedules during its term. After the agreement expired, the District continued existing salary schedules but ceased further cost-of-living adjustments for 1995-1996, prompting the petitioner to file an improper practice charge. The Public Employment Relations Board (PERB) reversed an Administrative Law Judge's decision, concluding that the agreement did not mandate continued cost-of-living adjustments post-expiration. The Supreme Court dismissed the petitioner's subsequent CPLR article 78 petition seeking annulment of PERB's determination. The Appellate Division affirmed the Supreme Court's judgment, deferring to PERB's expertise and finding its interpretation that the adjustments were limited to the agreement's term to be reasonable and legally permissible.

Collective Bargaining AgreementSalary AdjustmentCost-of-Living AdjustmentPublic EmployerImproper Practice ChargeCivil Service LawPublic Employment Relations BoardJudicial ReviewCPLR Article 78Statutory Interpretation
References
6
Case No. 2023 NY Slip Op 04763
Regular Panel Decision
Sep 27, 2023

Lin v. Banko

This case involves an appeal in a divorce action concerning maintenance and equitable distribution. The defendant, William Banko, appealed a judgment of divorce from the Supreme Court, Westchester County, which awarded the plaintiff, Yvette Lin, maintenance and a distributive award. The appeal focused on the interpretation of a prenuptial agreement regarding the termination date of the marriage for distributive award calculations and the application of cost of living adjustments to maintenance. The Appellate Division affirmed the Supreme Court's decision, finding that the marriage terminated upon the commencement of the action and that annual cost of living adjustments were intended for the maintenance obligation, replacing a defunct index with a functionally identical one.

DivorceMaintenanceEquitable DistributionPrenuptial AgreementCost of Living AdjustmentAppellate ReviewNonjury TrialMarital PropertyContract InterpretationCPI Index
References
7
Case No. 2022 NY Slip Op 06887 [211 AD3d 432]
Regular Panel Decision
Dec 06, 2022

Lively v. Wafra Inv. Advisory Group, Inc.

The plaintiff, Francis P. Lively, appealed an order that dismissed his complaint against Wafra Investment Advisory Group, Inc. and Fawaz Al-Mubaraki. Lively, a former senior managing director, alleged age discrimination and retaliation under the New York State and City Human Rights Laws after being terminated due to sexual harassment complaints. The court affirmed the dismissal, finding that Lively failed to sufficiently allege age discrimination or a causal connection for retaliation. Additionally, his claims for tortious interference, defamation, negligence, unjust enrichment, and quantum meruit were also found to be inadequately pleaded or barred by other laws. The Second Circuit's prior dismissal of federal claims did not, however, preclude state law claims based on collateral estoppel.

Age DiscriminationRetaliationEmployment LawHuman Rights LawCollateral EstoppelWrongful TerminationTortious InterferenceDefamationUnjust EnrichmentQuantum Meruit
References
16
Case No. MISSING
Regular Panel Decision
Apr 07, 1988

De Coste v. Champlain Valley Physicians Hospital

Decedent, Darwin A. De Coste, experienced chest pain and elevated blood pressure, leading him to Champlain Valley Physicians Hospital where he was seen by Dr. William Amsterlaw. Amsterlaw diagnosed reflux esophagitis despite an abnormal electrocardiogram, discharging De Coste, who subsequently suffered a fatal cardiopulmonary arrest 12 hours later. The administrator of De Coste's estate filed a wrongful death action, alleging medical malpractice and that the misdiagnosis was the proximate cause of death. A jury awarded pecuniary damages and funeral expenses, which the defendants appealed. The appellate court affirmed the verdict, finding rational support for the jury's malpractice finding and rejecting the defendants' argument to reduce the award by Social Security benefits due to the effective date of CPLR 4545 (c).

Medical MalpracticeWrongful DeathProximate CauseCollateral Source RuleCPLR 4545Jury VerdictEmergency Room CareMisdiagnosisArteriosclerosisMyocardial Infarction
References
3
Case No. ADJ802221
En Banc
May 21, 2014

Warren Brower vs. David Jones Construction, State Compensation Insurance Fund

The Appeals Board affirmed the finding of permanent total disability and the allowance of medical-legal costs, but amended the decision to have permanent disability payments commence the day after temporary disability payments ceased, with cost-of-living adjustments starting the following January.

En Banc DecisionReconsiderationTemporary Total DisabilityPermanent Total DisabilityLabor Code Section 4656(c)(1)Labor Code Section 4650(b)Permanent and Stationary DateMedical-Legal ExpenseAgreed Medical EvaluatorTreating Physician
References
27
Case No. MISSING
Regular Panel Decision
May 04, 1983

Slatt v. Slatt

This case concerns a dispute between a divorced couple over a separation agreement from 1969. The plaintiff wife sought cost-of-living increases on a yearly bonus, in addition to monthly support payments. While cost-of-living increases were applied to monthly payments, they were not applied to the bonus for over a decade. The defendant husband conceded some miscalculations on monthly payments but argued the bonus was not subject to such increases, citing a six-year Statute of Limitations. The trial court initially ruled for the plaintiff on the bonus, but this dissenting opinion argues that the parties' consistent conduct over many years indicated the cost-of-living index did not apply to the bonus, thus advocating for a modification of the judgment.

separation agreementcost-of-living adjustmentspousal supportcontract interpretationstatute of limitationsmarital propertyappellate reviewdissenting opinionbonus paymentsNew York courts
References
1
Case No. MON 322663, LAO 0850418
Regular
Dec 10, 2007

DANIEL PAN vs. STATE OF CALIFORNIA, STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board denied the defendant's petition for reconsideration, upholding the administrative law judge's decision. The Board found that the defendant must include projected future cost-of-living adjustments based on the State Average Weekly Wage (SAWW) when calculating the present value of the permanent disability award to determine attorney's fees. The Board affirmed that a 4.7% SAWW adjustment, representing a 50-year average, is a rational basis for these calculations, and the defendant's contention of speculation was unfounded.

Workers' Compensation Appeals BoardPetition for ReconsiderationJoint Findings and AwardPermanent Total DisabilityLabor Code Section 4659(c)State Average Weekly WagePresent Value of AwardCommutation of Attorney's FeesDisability Evaluation UnitAnnual Adjustments
References
1
Case No. ADJ7315205
Regular
Jul 08, 2010

JOSE H. HERNANDEZ vs. COVE BUILDERS, INC., STATE COMPENSATION INSURANCE FUND

This case involves a dispute over the calculation of permanent disability (PD) payments for an applicant with 100% PD. The defendant appealed an order that adjusted PD payments based on a calculation by T. Blair McGowan, arguing that McGowan's calculations incorrectly applied a 15% increase under Labor Code section 4658(d)(2) and improperly included cost of living adjustments (COLA) prior to the date of injury. The Board granted reconsideration, finding the 15% increase inapplicable to 100% PD cases. However, due to the unsettled legal status of COLA calculations following *Duncan v. WCAB*, the Board rescinded the prior order and remanded the case for further proceedings to determine the correct PD rate.

Workers' Compensation Appeals BoardReconsiderationClerical ErrorPermanent Disability RateLabor Code Section 4658(d)(2)Labor Code Section 4659(c)Cost of Living AdjustmentDate of Injury100% Permanent DisabilityPermanent Partial Disability
References
1
Case No. MISSING
Regular Panel Decision

Wheeler v. Grande'Vie Senior Living Community

Plaintiff John A. Wheeler suffered injuries after slipping on ice and falling in the parking lot of defendant's assisted living facility while helping his mother-in-law move during a snowstorm. The area where he fell had been shoveled, but ice was present beneath a thin layer of snow. Wheeler and his wife initiated a personal injury action, which the Supreme Court dismissed by granting the defendant's motion for summary judgment, citing the "storm in progress" doctrine. On appeal, the higher court affirmed this decision, concluding that the plaintiffs failed to establish that the defendant's snow removal efforts created a hazardous condition or exacerbated the natural hazards of the storm. Furthermore, the court found no duty to warn of icy conditions during an ongoing storm under the specific circumstances, upholding the dismissal of the complaint.

Personal InjurySlip and FallPremises LiabilityStorm in Progress DoctrineSummary JudgmentLandowner DutySnow RemovalIceNegligenceAppellate Review
References
7
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