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

Case No. 2010 NY Slip Op 32441[U]
Regular Panel Decision
Oct 25, 2010

United States Fidelity & Guaranty Co. v. American Re-Insurance

This dissenting opinion addresses the affirmation of a judgment that granted plaintiffs' motion for summary judgment. The dissent argues that a genuine triable issue of fact exists regarding whether a portion of a substantial settlement between United States Fidelity & Guaranty Company (USF&G) and Western MacArthur was attributable to bad faith claims, which are purportedly not covered by the defendants' reinsurance treaty. The dissenting judge contends that the treaty's plain language excludes such extra-contractual liabilities and that the majority incorrectly applied the 'follow the fortunes' clause. Furthermore, the dissent cites findings from bankruptcy court and evidence from the underlying Western MacArthur v USF&G coverage litigation, both suggesting that bad faith damages were indeed part of the settlement. Therefore, the dissenting justice advocates for denying the plaintiffs' motion for summary judgment and vacating the judgment.

ReinsuranceBad Faith ClaimsSettlement AgreementSummary JudgmentContract InterpretationDissenting OpinionExtra-Contractual LiabilityFollow the Fortunes ClauseBankruptcy Court FindingsCoverage Litigation
References
7
Case No. MISSING
Regular Panel Decision

Wilinski v. 334 East 92nd Housing Development Fund Corp.

The dissenting opinion addresses a plaintiff's claim under Labor Law § 240 (1) for injuries sustained when metal plumbing pipes, standing vertically from the floor, toppled onto him during demolition work. The dissent argues that the majority errs by finding the case falls under the statute. Citing precedents like Misseritti, Narducci, and Melo, the dissenting judge asserts that the plaintiff's injuries were not the result of an elevation-related hazard contemplated by section 240 (1), as the base of the falling objects was at the same level as the plaintiff and his work site. Furthermore, the plaintiff failed to demonstrate that a specific, enumerated safety device would have prevented the accident. The dissent concludes that section 240 (1) should not apply under these circumstances and would affirm the Appellate Division's order.

Workers' CompensationLabor LawElevation HazardFalling ObjectSummary JudgmentAppellate ReviewDissenting OpinionStatutory InterpretationSafety DevicesConstruction Site
References
8
Case No. MISSING
Regular Panel Decision

Ramos v. Howard Industries, Inc.

This is a dissenting opinion in a products liability action concerning a transformer explosion, where the defendant, Howard Industries, Inc., moved for summary judgment. The central issue is the defendant's entitlement to summary judgment when the allegedly defective product was unavailable for inspection or testing. The dissenting judge argues that the defendant's expert evidence, which speculates on alternative causes while admitting the inability to prove a manufacturing defect without the product, is insufficient to meet their burden for summary judgment. The dissent distinguishes this case from Speller v Sears, Roebuck & Co. by highlighting the unique disadvantage faced by the plaintiff due to the product's unavailability in rebutting speculative theories. Therefore, the dissenting judge believes the Appellate Division's decision that the defendant failed to meet its burden should have been upheld, rather than reversed by the majority.

Products LiabilitySummary JudgmentExpert TestimonyProduct UnavailabilityCausationManufacturing DefectDissenting OpinionEvidentiary BurdenAppellate ReviewTrial Procedure
References
1
Case No. MISSING
Regular Panel Decision

Laudisio v. Diamond D Construction Corp.

In this dissenting opinion, Judge Hurlbutt partially disagrees with the majority's decision. While agreeing that the Supreme Court incorrectly granted the defendant's motion for summary judgment, the dissent asserts that the court rightly denied the plaintiffs' cross-motion to strike an affirmative defense rooted in Workers’ Compensation Law § 29 (6). The dissent argues that the exclusivity provisions of the Workers' Compensation Law should bar the plaintiffs' action if Joseph DiPizio, a principal of both the plaintiff's employer and the defendant, had indistinguishable responsibilities for safety. Furthermore, it suggests that the statute should apply to the extent the defendant’s liability is vicariously derived from DiPizio’s conduct. Therefore, the dissent advocates for modifying the order by denying the defendant’s motion and remitting the case to Supreme Court, Erie County, for further determination of independent liability.

Workers' Compensation LawExclusivity ProvisionsSummary JudgmentAffirmative DefenseVicarious LiabilityCorporate VeilEmployer LiabilityPrincipalCo-employee NegligenceAppellate Dissent
References
9
Case No. MISSING
Regular Panel Decision

In re the Arbitration between Fayetteville-Manlius Central School District & Fayetteville-Manlius Teachers Ass'n

Goldman, J., dissenting, agrees with the majority that the school district failed to give timely notice of tenure denial and dismissal to Ms. O’Neil. However, the dissent disagrees with the majority's determination that the arbitration award, which included payment for unemployment and reinstatement for an additional probationary year, should be partially vacated. Goldman argues that the arbitrator's grant of an additional probationary year was not an alteration of the collective bargaining agreement nor an excess of the arbitrator's powers under CPLR 7511. The dissent asserts that the arbitrator acted within broad authority to provide a just remedy and that reinstating Ms. O'Neil to probationary status did not infringe on the school board's exclusive right to grant tenure. Therefore, the dissenting opinion concludes that the arbitration award should be confirmed in its entirety, including the reinstatement for an additional probationary year and payment for unemployment.

Probationary TeacherTenure DenialArbitration AwardCollective Bargaining AgreementTimely NotificationDismissalReinstatementBack PayArbitrator AuthorityCPLR 7511
References
20
Case No. MISSING
Regular Panel Decision

Jastrzebski v. North Shore School District

The provided text is a dissenting opinion by Bracken, J. P., with Krausman, J., concurring. The dissent argues against the majority's decision, which seemingly allowed the 'recalcitrant worker' defense to prevail for the defendant. Bracken, J. P., asserts that the facts of the current case are virtually identical to those in *Gordon v Eastern Ry. Supply*, a precedent-setting case where the Court of Appeals explicitly rejected the recalcitrant worker defense under similar circumstances involving a fall from a ladder when alternative equipment (scaffolds) was available. The dissent criticizes the majority for distinguishing *Gordon* by recasting its facts, arguing that the reported facts in *Gordon* consistently indicated scaffold availability. Therefore, the dissenting judge votes to reverse the order and judgment, grant the plaintiff judgment as a matter of law on liability, and remit the case for a trial on damages.

Recalcitrant Worker DefenseLadder SafetyScaffold SafetyWorkplace InjuryEmployer LiabilitySummary JudgmentAppellate DivisionCourt of AppealsPrecedentLegal Interpretation
References
2
Case No. MISSING
Regular Panel Decision

Subway Surface Supervisors Ass'n v. New York City Transit Authority

Justice Abdus-Salaam dissents from the majority's decision, arguing that the petition should be dismissed for failure to state a cause of action. The dissent contends that Civil Service Law § 115, upon which the majority bases its order for a hearing, merely enunciates a policy and does not provide an enforceable statutory right or a cognizable claim for violation. The opinion highlights that all cited case law supports this interpretation and that the majority has failed to identify any precedent recognizing a cause of action under § 115. Furthermore, the dissent rejects the petitioner's Equal Protection Clause claim regarding wages established through collective bargaining, asserting that unions cannot seek judicial intervention to impose wage scales not agreed upon during negotiations. The dissent maintains that collective bargaining agreements, even if they result in wage disparities, are generally upheld, provided they meet valid state objectives.

Civil Service LawEqual Pay for Equal WorkCollective BargainingDissenting OpinionStatutory InterpretationPolicy EnforcementJudicial ReviewEqual Protection ClauseWage DisparityEmployment Law
References
10
Case No. MISSING
Regular Panel Decision

Mazella v. Beals

This dissenting opinion, authored by J.E. Smith, challenges the majority's finding that defendant William Beals, M.D.'s negligence was a proximate cause of Joseph Mazella's suicide. The dissent highlights Beals' admitted negligence in treating Mazella for depression over many years without personal consultations. However, it emphasizes that Mazella received extensive subsequent medical treatment from other providers, including hospitalizations and significant medication changes, after his last contact with Beals. The dissenting judge argues that these intervening acts by other medical professionals constitute a superseding cause, severing any causal link between Beals' prior negligence and Mazella's death. Furthermore, the dissent contends that an evidentiary error regarding the admission of a consent agreement between defendant and the Office of Professional Medical Conduct unfairly prejudiced the defendant, contributing to the jury's erroneous determination of liability.

Medical malpracticeProximate causeSuicideIntervening causeSuperseding causeDissenting opinionPsychiatric treatmentNegligenceEvidentiary errorProfessional Medical Conduct
References
16
Case No. MISSING
Regular Panel Decision

Claim of Howe v. Wm. Spencer & Son Corp.

The dissenting opinion argues that the decedent was not in the course of his employment when he was struck on the public highway because he had left work for the Christmas holiday. His presence at the time of the accident was for purely personal reasons and unconnected to his employment. The dissent asserts that the death did not arise out of or in the course of employment, and there is no substantial evidence to the contrary. The testimony of a witness, Hayes, is deemed highly suspect and uncorroborated, referencing Workmen’s Compensation Law, § 118, and *Matter of Ohriner* v. *Jamaica Wet Wash Laundry Co.* The dissent concludes that the board's decision should be reversed and the claim dismissed.

Workers' CompensationEmployment ScopeHoliday LeavePersonal ActivitiesFatal AccidentPublic HighwayUncorroborated TestimonyDissenting OpinionClaim DismissalCausation
References
1
Case No. MISSING
Regular Panel Decision
Aug 01, 1983

Dowling v. Consolidated Carriers Corp.

This dissenting opinion addresses a case where a truck driver lost control due to a stuck accelerator and crashed into two illegally parked buses on the shoulder of the Long Island Expressway, injuring a passenger. The dissent argues against the majority's finding of a triable issue regarding proximate cause, asserting that the buses' improper parking merely provided a condition for the accident, and the sole proximate cause was the truck driver's negligence. Citing several legal precedents, the opinion supports the Trial Term's decision to grant summary judgment, dismissing the complaint against the bus defendants. The dissent emphasizes that the accident, given the circumstances, was not reasonably foreseeable from the buses' position.

Proximate CauseSuperseding CauseIntervening CauseSummary JudgmentNegligence LawTraffic AccidentVehicle Law ViolationForeseeability DoctrineDissenting OpinionPersonal Injury Claim
References
13
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