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

Case No. 2021 NY Slip Op 04540
Regular Panel Decision
Jul 28, 2021

Garcia v. Emerick Gross Real Estate, L.P.

David Garcia, an employee of Temperature Systems, Inc. (TSI), sustained personal injuries after falling from a ladder supplied by Emerick Gross Real Estate, L.P. (Emerick) while working at one of Emerick's properties. Garcia sued Emerick alleging violations of Labor Law §§ 200, 240 (1), and 241 (6), and common-law negligence, prompting Emerick to file a third-party action against TSI for contractual indemnification. The Supreme Court, Nassau County, denied both Garcia's and Emerick's motions for summary judgment, and TSI's cross-motion for summary judgment dismissing the third-party complaint. Additionally, the Supreme Court granted Garcia's cross-motion for discovery sanctions against Emerick for spoliation of evidence, determining that Garcia was entitled to a negative inference at trial due to the disposal of the ladder. The Appellate Division, Second Department, affirmed the Supreme Court's order in its entirety, concluding that triable issues of fact existed regarding whether Garcia was a recalcitrant worker and the sole proximate cause of his injuries, and whether the alleged contractual indemnification provision was enforceable.

Personal InjuryLabor LawElevation-related HazardsSummary JudgmentContractual IndemnificationSpoliation of EvidenceNegative InferenceRecalcitrant WorkerProximate CauseSafe Place to Work
References
18
Case No. MISSING
Regular Panel Decision

O'Neil v. Roman Catholic Diocese

A student worker at St. Ephrem’s Church (the plaintiff) experienced sexual harassment from a visiting priest. After a particularly egregious incident, she informed other parish priests who promptly referred her to law enforcement. The plaintiff subsequently sued the Roman Catholic Diocese of Brooklyn and St. Ephrem’s Church for sexual harassment, negligence, negligent hiring, and negligent supervision, arguing they should have known of the priest's propensity. The Supreme Court, Kings County, granted summary judgment to the Diocese defendants, dismissing the plaintiff's claims, finding they lacked actual or constructive knowledge. The appellate court affirmed this decision, concluding that the defendants met their burden in demonstrating no prior knowledge of the visiting priest's conduct and acted diligently once informed.

Sexual HarassmentHostile Work EnvironmentNegligenceNegligent HiringNegligent SupervisionSummary JudgmentEmployer LiabilityConstructive KnowledgeDiscriminationNew York City Human Rights Law
References
8
Case No. MISSING
Regular Panel Decision

Health Acquisition Corp. v. Program Risk Management Inc.

The plaintiffs, home health care companies (Health Acquisition Corp., Bestcare, Inc., and Aides at Home, Inc.), sued various defendants, including accounting firm DeChants, Fuglein & Johnson, LLP (DFJ) and actuarial firm SGRisk, LLC, for professional negligence and negligent misrepresentation. The suit arose after the self-insurance trust they were members of became insolvent, leading to significant assessments from the Workers' Compensation Board. Plaintiffs alleged defendants concealed the trust's true financial state and their liability risks. The Supreme Court initially dismissed claims against DFJ and SGRisk. However, the appellate court reversed this decision, finding the complaint adequately alleged "near-privity" and negligence against both firms, even clarifying that actuaries could be held liable for common-law negligence despite not being licensed professionals for malpractice claims. A partial appeal concerning leave to amend the complaint was dismissed.

professional negligencenegligent misrepresentationCPLR 3211 (a)motion to dismissgroup self-insurance trustWorkers' Compensation Law § 50joint and several liabilityactuariesaccountantsnear-privity
References
15
Case No. MISSING
Regular Panel Decision

Taylor v. Board of Regents of University

Petitioner, a licensed optometrist in New York since 1981, faced eight specifications of professional misconduct between 1980 and 1985 while employed by American Vision Center. Charges included negligence, gross negligence, practicing beyond authorized scope by administering Neosporin, and unprofessional conduct for delegating responsibilities to unlicensed staff and failing to wear a name tag. A Hearing Panel found petitioner guilty, recommending a license suspension and fine. The Regents Review Committee modified these findings, and the respondent further narrowed the period of charges. Petitioner challenged the determination, alleging denial of due process due to lack of specificity and delay. The Court rejected the due process claims, finding charges specific and no actual prejudice from delay. While the Court found substantial evidence for negligence, unauthorized practice, and unprofessional conduct, it annulled the finding of gross negligence. Despite this annulment, the Court upheld the original penalty, modifying the determination only to reflect the removal of the gross negligence finding, and otherwise confirming the decision.

Optometry license suspensionProfessional misconductUnlicensed practiceDelegation of professional responsibilitiesGross negligenceDue processAdministrative reviewCPLR Article 78Education LawRegents Review Committee
References
11
Case No. MISSING
Regular Panel Decision

Lauria v. Donahue

John Lauria sued his employer, Nextel of New York, Inc., and several individual defendants, alleging discrimination and retaliation under the Americans with Disabilities Act (ADA) and various state law claims (negligence, gross negligence, intentional infliction of emotional distress, and breach of implied contract). Lauria claimed exposure to tuberculosis and viral pneumonia in the workplace and subsequent termination for refusing to sign a liability waiver. His wife, Dawn Lauria, also sought damages for loss of consortium. The court dismissed all ADA claims against individual defendants and Dawn Lauria with prejudice, citing no individual liability under ADA and her lack of standing. State law claims for negligence, gross negligence, intentional infliction of emotional distress, and breach of implied contract were dismissed without prejudice, with leave granted to file an amended complaint. The court found that Workers' Compensation Law barred negligence claims and that the IIED claim was time-barred.

ADA DiscriminationWorkplace RetaliationIndividual Liability ADALoss of Consortium ClaimsWorkers' Compensation BarERISA PreemptionIntentional Infliction Emotional DistressBreach Implied ContractTuberculosis ExposureViral Pneumonia Exposure
References
49
Case No. CA 11-00538
Regular Panel Decision
Mar 16, 2012

INTER-COMMUNITY MEMORIAL HOSPITAL A v. THE HAMILTON WHARTON GROUP, INC.

Plaintiffs, formerly active members in a workers' compensation group self-insurance trust fund, initiated this action to recover damages from the program administrator, managing director, and individual trustees for claims including negligence, gross negligence, breach of contract, and breach of fiduciary duty, stemming from financial deficits levied against them. The Appellate Division modified the Supreme Court's order. It vacated portions granting plaintiffs leave to replead negligence and gross negligence claims against certain defendants, asserting that tort claims from negligent contract performance are not recognized without an independent duty. The court also vacated the allowance for a new indemnification cause of action. However, the dismissal of breach of contract claims as time-barred was erroneous; these claims were reinstated to the extent they arose from breaches within six years of the action's commencement, with specific note that deficit assessments were levied on June 30, 2005, falling within the six-year statute of limitations. The court affirmed the denial of dismissal against Walter B. Taylor individually.

breach of contractnegligencegross negligencefiduciary dutystatute of limitationsworkers' compensation trustself-insuranceappellate reviewmotion to dismissleave to replead
References
21
Case No. MISSING
Regular Panel Decision

Ziccarelli v. NYU Hospitals Center

Plaintiff Jeffry Zic-carelli filed suit against NYU Hospitals Center and several individual defendants, alleging FMLA interference and retaliation, improper disclosure of medical information, negligence, gross negligence, and New York City Human Rights Law violations. The plaintiff claimed he was pressured to work during FMLA leave and that his medical records were improperly accessed. The court granted motions to dismiss FMLA and improper disclosure claims against individual defendants but denied dismissal for negligence and gross negligence claims against NYU. Plaintiff's motion for leave to amend was partially denied for futility but granted for leave to include additional factual allegations on certain counts.

FMLA InterferenceFMLA RetaliationMedical Information DisclosureNegligenceGross NegligenceMotion to DismissLeave to AmendEmployment LawWorkers' Compensation PreclusionEconomic Reality Test
References
35
Case No. MISSING
Regular Panel Decision

Hancock v. City of New York

This case concerns a wrongful death action brought by the Plaintiff against the City of New York and A & P Burglar Alarm Systems, Inc., following the shooting death of Kyle Meriwether in her store. Plaintiff alleged negligence against A & P for its delayed and unclear 911 call reporting an activated silent alarm, and against the City for failures by its 911 operators and police in responding to the emergency. The court granted A & P's motion for summary judgment, upholding its contractual exculpatory clause against ordinary negligence claims and finding no evidence of gross negligence. Conversely, the City's motion for summary judgment was denied, with the court ruling that a triable issue of fact existed concerning a "special relationship" between the City and Ms. Meriwether, even though she didn't directly call 911, due to her reliance on the contracted alarm company to do so. Furthermore, the Plaintiff's request to amend the notice of claim against the City was granted, but her motion to amend the complaint to include gross negligence against A & P was denied.

Wrongful DeathSummary JudgmentNegligenceGross Negligence911 Emergency ServicesAlarm System LiabilityMunicipal LiabilitySpecial Relationship DoctrineNotice of Claim AmendmentCausation
References
20
Case No. MISSING
Regular Panel Decision

Inter-Community Memorial Hospital of Newfane, Inc. v. Hamilton Wharton Group, Inc.

This case involves an appeal and cross-appeal concerning former members of a group self-insurance trust fund, created under Workers’ Compensation Law § 50 (3-a), who sought damages for levies imposed due to the trust's financial deficits. Plaintiffs sued the program administrator, The Hamilton Wharton Group, Inc. (HWG), its principal Walter B. Taylor, and individual trustees for negligence, gross negligence, breach of contract, and breach of fiduciary duty. The Supreme Court, Niagara County, had initially dismissed parts of the amended complaint. On appeal, the Court modified the lower court's order by vacating the granting of leave to replead negligence and gross negligence claims against HWG and Taylor, and the leave to assert a new indemnification cause of action. However, the appellate court reinstated the breach of contract causes of action against HWG, Taylor, and the individual trustees, ruling that they were not entirely time-barred due to the nature of continuing performance contracts. The Court also affirmed the denial of dismissal against Taylor individually.

Workers' CompensationSelf-Insurance TrustBreach of ContractNegligenceGross NegligenceBreach of Fiduciary DutyStatute of LimitationsPleading AmendmentsIndemnificationAppellate Review
References
20
Case No. 2024 NY Slip Op 00739 [224 AD3d 475]
Regular Panel Decision
Feb 13, 2024

Hasan v. Terrace Acquisitions II, LLC

This case addresses the retroactivity of the repeal of the Emergency or Disaster Treatment Protection Act (EDTPA). Plaintiff, representing the estate of a deceased nursing home resident, sued the defendant nursing home for negligence, gross negligence, and wrongful death related to COVID-19. The Supreme Court dismissed the complaint, which the Appellate Division, First Department, affirmed. The court held that the repeal of the EDTPA, which previously granted immunity to healthcare facilities during the pandemic, was not retroactive. Therefore, the defendant was entitled to immunity for actions that occurred while the EDTPA was in effect. Additionally, the court found that the defendant successfully defended against the gross negligence claim, demonstrating preparatory steps to prevent infections and adherence to Department of Health policies.

Retroactivity of statute repealEmergency or Disaster Treatment Protection Act (EDTPA)COVID-19 immunityNursing home liabilityGross negligence defenseStatutory interpretationPublic Health LawAppellate reviewWrongful death claimNegligence claim
References
15
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