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

Case No. 2025 NY Slip Op 03249
Regular Panel Decision
May 29, 2025

Hartford Fire Ins. Co. v. Hudson Excess Ins. Co.

This declaratory judgment action addresses an insurance coverage dispute stemming from an underlying personal injury claim. Plaintiffs Hartford Fire Insurance Company and Mayer Malbin Realty I, LLC sought defense and indemnity from Hudson Excess Insurance Company for an injury sustained by a worker at a construction site. Although aware of potential coverage in October 2017, plaintiffs did not tender notice to Hudson until May 2020. Hudson subsequently disclaimed coverage due to this significant delay. The Supreme Court initially granted plaintiffs' motion for summary judgment, but the Appellate Division, First Department, unanimously reversed this decision. The appellate court ruled that plaintiffs failed to meet their burden of showing Hudson was not prejudiced by the late notice, which hindered Hudson's ability to conduct a timely investigation.

Insurance CoverageDisclaimer of CoverageLate NoticePrejudice DefenseAdditional InsuredSummary Judgment ReversalAppellate ReviewPersonal Injury ActionConstruction Site AccidentSubcontractor Liability
References
4
Case No. MISSING
Regular Panel Decision

Northbrook Excess & Surplus Insurance v. Chubb Group of Insurance Companies

This declaratory judgment action addresses the hierarchy of excess insurance policies in a situation where one policy is primary for owned vehicles but excess for non-owned, and the second is an umbrella policy covering multiple risks. The case stems from an accident involving a rented van, which led to a $650,000 settlement. After the primary insurer paid $500,000, Chubb Group of Insurance Companies and Northbrook Excess and Surplus Insurance Co. each contributed $75,000, pending a determination of their respective excess coverage obligations. The Supreme Court initially ruled for ratable contribution. However, citing State Farm Fire & Cas. Co. v LiMauro, the appellate court reversed, holding that Northbrook's umbrella policy constitutes a final tier of coverage, not required to contribute ratably with Chubb's excess policy. Consequently, summary judgment was granted to Northbrook, entitling it to a $75,000 reimbursement from Chubb.

Excess InsuranceUmbrella InsuranceDeclaratory JudgmentInsurance Policy InterpretationInsurance Coverage DisputeAutomobile Liability InsuranceNon-Owned VehicleRatable ContributionFinal Tier CoverageSummary Judgment
References
2
Case No. MISSING
Regular Panel Decision

In re the Estate of Cosentino

The absentee, a fireman and businessman, disappeared on July 17, 1994, after leaving his home to attend to a Snapple delivery. Despite extensive police investigation and diligent search efforts by his spouse, no trace of him was found, and his car was later discovered abandoned. His family had no prior indication of his intent to abandon them. The petitioner, his spouse, sought a determination under EPTL 2-1.7 that he died on the date of his disappearance, aiming to secure specific benefits. The court, interpreting EPTL 2-1.7 and relevant case law, determined that while no 'specific peril' was evident, the compelling circumstances after three years of continuous unexplained absence rebutted the statutory presumption of death at the end of the three-year period. Consequently, the court held that the absentee died on July 18, 1994, and directed the issuance of letters of administration to the petitioner.

EPTL 2-1.7Presumption of DeathAbsenteeDisappearanceDate of Death DeterminationLetters of AdministrationSurrogate's CourtFamily LawEstate LawDiligent Search
References
11
Case No. ADJ793678 (OAK 0338326)
Regular
Sep 07, 2010

ARMENDO CASAS vs. LOS ANGELES CHEMICAL and EXCESS SPECIALTY INSURANCE, GAB ROBINS, BRENNTAG and EXCESS SPECIALTY INSURANCE, SPECIALTY RISK SERVICES

This case involves a petition for reconsideration by Excess Specialty Insurance regarding a workers' compensation award. The original award found the applicant sustained a cumulative trauma injury ending November 2, 2006, but deferred key issues like sleep disorder, permanent disability, and liens. The Board granted reconsideration, rescinded the original award, and returned the case for a new decision at the trial level. The Board believes piecemeal adjudication should be avoided and all issues should be decided concurrently after further development of the record.

Cumulative traumaThoracic spineLumbar spinePsycheSleep disorderGastrointestinal disorderSexual dysfunctionPermanent disabilityEmployment Development Department lienPetition for Increase in Compensation
References
0
Case No. MISSING
Regular Panel Decision
Mar 07, 1990

In re the Claim of Thomas Sligh

The claimant appealed a decision by the Unemployment Insurance Appeal Board, which upheld its prior ruling that the claimant was disqualified from receiving unemployment insurance benefits due to employment termination caused by misconduct. The Board's decision, filed on March 7, 1990, was found to be supported by substantial evidence. The evidence indicated that the claimant, a porter, had received both oral and written warnings regarding excessive absenteeism and admitted to multiple absences and failing to report for an entire week without calling in. The court affirmed the decision, noting that unreported and excessive absences constitute misconduct warranting disqualification from benefits.

Unemployment InsuranceAbsenteeismMisconductEmployment TerminationAppeal BoardPorterWarningsDisqualificationLabor LawJudicial Review
References
3
Case No. MISSING
Regular Panel Decision

Gradel v. Lilholt

Petitioner, a sanitation worker for the Sullivan County Public Works Department, challenged his employment termination via a CPLR article 78 proceeding. The termination followed a disciplinary hearing under Civil Service Law § 75, where he was found guilty of excessive absenteeism, poor job performance, and insubordination. Despite the Hearing Officer's recommendation for a suspension and probation, respondents terminated his employment. The petitioner contended that the findings were unsupported by substantial evidence and the penalty was excessive. The court disagreed, affirming the determination and dismissing the petition, citing substantial evidence for misconduct and insubordination, and finding the penalty proportionate given a pattern of poor work performance and disruptive behavior.

Employment TerminationDisciplinary HearingCivil Service LawAbsenteeismInsubordinationPoor Job PerformanceCPLR Article 78Judicial ReviewPenalty ReviewSubstantial Evidence
References
3
Case No. MISSING
Regular Panel Decision

Slaughter v. American Building Maintenance Co.

Ellis L. Slaughter, a former employee of American Building Maintenance Co. of New York (ABM), moved for partial summary judgment on his Family and Medical Leave Act (FMLA) claim and to dismiss ABM's affirmative defense of collateral estoppel. Slaughter was terminated by ABM due to excessive absences under a 'no fault' policy, stemming from recurring back pain, a condition known to ABM's predecessor. The court found that Slaughter's notice to ABM regarding his FMLA-qualifying leave was insufficient for summary judgment in his favor, as merely calling in sick did not adequately inform ABM of his FMLA-protected condition, and doctors' notes were provided with delay. However, the court granted Slaughter's motion to dismiss ABM's collateral estoppel defense, ruling that a prior arbitration decision, which upheld his termination for excessive absenteeism, did not preclude his federal statutory FMLA claim because the issues resolved were distinct and the arbitrator did not consider FMLA specifics. The motion for summary judgment was thus granted in part and denied in part.

FMLASummary Judgment MotionCollateral EstoppelAbsenteeism PolicyTermination of EmploymentBack InjuryMedical Leave NoticeLabor LawEmployee RightsPreclusive Effect of Arbitration
References
27
Case No. ADJ1215365 (SJO 0260331)
Regular
Jul 07, 2017

ANTHONY DRAGO vs. CITY OF SUNNYVALE, CSAC EXCESS INSURANCE AUTHORITY

This case concerns applicant Anthony Drago's cumulative injury claim against the City of Sunnyvale and its insurer, CSAC Excess Insurance Authority, stemming from his employment as a police officer. The Workers' Compensation Appeals Board (WCAB) reconsidered a previous award, rescinding the initial $72\%$ permanent disability finding. The WCAB increased the disability rating to $84\%$, primarily due to re-evaluating applicant's cardiovascular injury based on applicant's treating physician's opinion over the defense QME. The WCAB deferred the issue of attorney's fees for further proceedings at the trial level.

WCABReconsiderationCumulative InjuryAOE/COEPermanent DisabilityQMEAMA GuidesDyslipidemiaCoronary Artery DiseaseAngiography
References
5
Case No. MISSING
Regular Panel Decision

Banner Employment Agency, Inc. v. O'Connell

This case concerns the annulment of a respondent's determination that a petitioner employment agency violated Section 185 of the General Business Law by charging an excessive fee. The dispute centered on the classification of an employee for fee calculation, with the respondent advocating for 'Class A1' and the petitioner for 'Class B'. The employee possessed an engineering background and technical experience. The court concluded that the employment did not fit into 'Class A1' or the professional aspect of 'Class B', instead falling under 'Class B's' residual 'other employment' category. Consequently, the respondent's initial determination was annulled.

Employment Agency FeesGeneral Business LawEmployment ClassificationStatutory InterpretationExcessive ChargeJudicial ReviewAnnulmentSkilled WorkerNon-Professional EmploymentClass B Employment
References
1
Case No. MISSING
Regular Panel Decision

Claim of Johnson v. Moog, Inc.

Claimant was terminated from employment due to excessive absenteeism. He subsequently filed a complaint alleging discriminatory discharge in violation of Workers’ Compensation Law §§ 120 and 241, asserting he was fired for attempting to file a disability benefits claim. The Workers’ Compensation Board found the termination was for a legitimate, non-retaliatory reason, which was affirmed on appeal. The court emphasized that the burden of proving retaliation rests with the claimant, requiring a causal nexus between protected activity and detrimental employer conduct, which was not established in this case, and that a termination due to lengthy absence, absent retaliatory intent, does not constitute discrimination.

DiscriminationRetaliationExcessive AbsenteeismDisability Benefits ClaimWorkers' Compensation LawBurden of ProofCausal NexusJob TerminationAppellate ReviewSubstantial Evidence
References
3
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