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

Case No. 2023 NY Slip Op 04984 [220 AD3d 683]
Regular Panel Decision
Oct 04, 2023

Compensation Guidance, Inc. v. Ashnu Intl., Inc.

Compensation Guidance, Inc. sued Ashnu International, Inc. for breach of a consulting agreement related to reviewing workers' compensation policies for overcharges. The plaintiff appealed the Supreme Court's denial of its motion for summary judgment on the breach of contract claim. The Appellate Division affirmed the lower court's decision, determining that questions of fact remained regarding whether the plaintiff's work adhered to the terms of the agreement. Therefore, summary judgment was deemed inappropriate.

Breach of ContractConsulting AgreementWorkers' CompensationSummary JudgmentContract InterpretationAppellate DivisionQuestions of FactContractual ObligationsDamages
References
6
Case No. MISSING
Regular Panel Decision
Apr 04, 2007

Avins v. Federation Employement & Guidance Service, Inc.

This case concerns an appeal regarding the liability of Federation Employment and Guidance Service, Inc. (FEGS) for the stabbing of 10-month-old Isabella Avins by Bernard Derr, a resident in a FEGS Intensive Supportive Apartment Program (ISAP). The plaintiff alleged negligent supervision and medical malpractice, arguing FEGS failed to monitor Derr's mental deterioration. The court dismissed the medical malpractice claim. The core issue was whether FEGS had a special relationship with Derr, imposing a duty to control his conduct and protect the public, given his voluntary residency and FEGS's non-medical support services. The appellate court reversed the lower court's denial of dismissal, finding no such special relationship or duty, as Derr had no history of violence and FEGS's staff had not observed unusual behavior, thus dismissing the complaint.

Negligent supervisionDuty of careSpecial relationshipMental health housingCommunity residence programVoluntary residentDismissalAppellate reviewNew York lawThird-party liability
References
3
Case No. MISSING
Regular Panel Decision

In re the Arbitration between Windsor Central School District & Windsor Teachers Ass'n

The Windsor Central School District (District) and the Windsor Teachers Association (Association) had a collective bargaining agreement. The Association filed grievances for guidance counselors assigned study hall duties, claiming a violation of section 11.3 (e) of their agreement. An arbitrator ruled in favor of the Association, citing the District's past practice of not assigning guidance counselors to study halls. The District and Superintendent of Schools petitioned the Supreme Court to vacate the award, which was granted on the grounds that the arbitrator exceeded their authority by relying on past practice. However, the appellate court reversed this decision, holding that arbitrators can indeed rely on past practice to interpret collective bargaining agreements and did not exceed their authority in this case.

Collective bargaining agreementArbitration awardVacaturPast practiceArbitrator authorityGrievanceEducation lawTeachers' unionAppellate reviewScope of arbitration
References
6
Case No. 2022 NY Slip Op 02469 [204 AD3d 1199]
Regular Panel Decision
Apr 14, 2022

Matter of Olszewski v. PAL Envtl. Safety Corp.

Claimant Albert Olszewski appealed a Workers' Compensation Board decision that denied review of a Workers' Compensation Law Judge's disallowance of his 2017 claim for a work-related left arm injury. The Board had denied review because Olszewski failed to submit a separate application form for the 2017 claim, citing internal guidance. The Appellate Division, Third Department, found that the Board abused its discretion by denying review on this procedural ground. The court noted that the internal guidance outlined cost assessments as penalties, not outright denial of review, and the procedural requirement was not explicitly stated in the form instructions or regulations. Consequently, the court modified the Board's decision, reversing the denial of review for the 2017 claim and remitting the matter to the Workers' Compensation Board for further proceedings.

Workers' CompensationAppellate ReviewAdministrative LawProcedural ComplianceAbuse of DiscretionClaim DenialForm RequirementsJudiciary LawWorkers' Compensation LawBoard Review
References
4
Case No. MISSING
Regular Panel Decision

Fitzgerald v. New York City School Construction Authority

The plaintiffs appealed an order from the Supreme Court, Queens County, which granted summary judgment to the defendants New York City School Construction Authority, New York City Board of Education, and Pillar Construction, Inc., dismissing causes of action alleging a violation of Labor Law § 241 (6). The case involved an injured plaintiff who was struck by a backing forklift without a signal person. The plaintiffs argued a violation of 12 NYCRR 23-9.7 (d), which requires guidance for backing trucks. The appellate court affirmed the summary judgment, finding that the specific safety regulation cited (12 NYCRR 23-9.7 (d)) was inapplicable to forklifts, which are governed by 12 NYCRR 23-9.8, a provision lacking the explicit guidance requirement. As the plaintiffs failed to raise a triable issue of fact, the Supreme Court's decision was upheld.

Construction SafetyPersonal InjurySummary JudgmentLabor LawIndustrial CodeForklift AccidentAppellate ReviewSafety RegulationsNondelegable DutyWorkers' Rights
References
4
Case No. MISSING
Regular Panel Decision

HLP Properties, LLC v. New York State Department of Environmental Conservation

Petitioners, including HLP Properties, LLC, challenged the New York State Department of Environmental Conservation's (DEC) 2007 denial of their application to enroll a contaminated Manhattan site in the Brownfield Cleanup Program (BCP). The site, formerly a manufactured gas plant, was heavily contaminated with coal tar and other hazardous substances, with petitioners seeking BCP benefits for redevelopment into residential and commercial highrises. DEC justified its denial by applying internal 'guidance factors' that deemed the property not 'idled, abandoned, or underutilized' and its redevelopment not 'complicated by contamination,' citing an existing voluntary cleanup agreement with nonparty Con Edison. The court ruled that DEC's application of these extra-statutory guidance factors constituted an unlawful attempt to legislate, going against the clear legislative intent of the BCPA to encourage voluntary remediation of contaminated sites. Consequently, the court reversed DEC's decision, declaring the property a 'brownfield site' under the statute and ordering its acceptance into the BCP, while denying petitioners' claim for costs and disbursements.

Brownfield Cleanup ProgramEnvironmental Conservation LawCPLR Article 78Administrative Agency OverreachStatutory ConstructionVoluntary RemediationContaminated Land RedevelopmentJudicial Review of Agency ActionEconomic Guidance FactorsLegislative Intent
References
20
Case No. MISSING
Regular Panel Decision
Jul 03, 2012

Compensation Guidance Services, Inc. v. Harry's Nurses Registry, Inc.

In this breach of contract action, the plaintiff agreed to review the defendant's Workers' Compensation insurance policy to secure refunds. The plaintiff's services led to a reclassification of class codes, resulting in a $53,797 refund and credit for the defendant. Pursuant to their agreement, the plaintiff invoiced the defendant for 50% of this amount. Upon the defendant's failure to pay, the plaintiff commenced legal action. The Supreme Court granted the plaintiff's motion for summary judgment, and this decision was subsequently affirmed on appeal, including the adherence to the original determination upon reargument.

Breach of ContractSummary JudgmentWorkers' Compensation InsuranceInsurance PremiumsRefundsClass Codes ReclassificationAppealAffirmed JudgmentReargumentContractual Agreement
References
4
Case No. ADJ1377104 (VNO 0494626) ADJ4461737 (VNO 0494235) ADJ1560314 (VNO 0494624) ADJ4309040 (VNO 0494121) ADJ121879 (VNO 0494236)
Regular
May 11, 2016

STEFFANI ALVAREZ vs. COUNTY OF SAN BERNARDINO

The Workers' Compensation Appeals Board dismissed the lien claimants' petition for reconsideration because it was filed one day late. The Board affirmed the WCJ's dismissal of the liens for failure to file a notice of representation. The opinion also provides detailed guidance on the strict requirements for filing a notice of representation under WCAB Rule 10774.5.

WCABPetition for ReconsiderationLien claimantsNotice of representationWCJTimelinessLabor CodeRule 10774.5Allied Injury ManagementSan Bernardino
References
4
Case No. ADJ4203019 (STK 0122552)
Regular
Nov 01, 2012

TEENA WIGGINS vs. TREAT'S GENERAL STORE, GROCERS INSURANCE COMPANY

The Workers' Compensation Appeals Board (WCAB) dismissed Teena Wiggins' Petition for Reconsideration in case ADJ4203019. The dismissal was based on the petition not being timely filed, as per the WCJ's report which the WCAB adopted. Had the petition been timely, it would have been denied on the merits. The WCAB also advised Ms. Wiggins to contact the Information and Assistance Office for guidance on her options.

Petition for ReconsiderationTimely-filedReport and RecommendationWorkers' Compensation Appeals BoardAdministrative Law JudgeDismissing PetitionDeny on the meritsInformation and Assistance OfficeStockton District OfficeApplicant
References
0
Case No. ADJ2222557 (SDO 0313573) ADJ3311953 (SDO 0318818)
Regular
Nov 21, 2018

DAGO J. VARGIC vs. EL CAJON FLYING SERVICES, INC, STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board (WCAB) dismissed the applicant's petition for reconsideration because it was not filed from a final order that determined substantive rights or liabilities. The WCAB also denied the applicant's petition for removal, finding no showing of substantial prejudice or irreparable harm. The applicant's procedural or evidentiary decisions were deemed interlocutory. The WCAB directed the applicant to contact the Information and Assistance Officer for further guidance.

Petition for ReconsiderationFinal OrderInterlocutory OrderSubstantive RightRemovalWCJ's ReportJoint Findings and Award/OrderInformation and Assistance OfficerPetition DismissedRemoval Denied
References
10
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