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

Case No. 2020 NY Slip Op 05204 [186 AD3d 1679]
Regular Panel Decision
Sep 30, 2020

Matter of Board of Mgrs. of Half Moon Bay Mar. Condominium v. Board of Directors of Half Moon Bay Homeowners Assn., Inc.

This case concerns a CPLR article 78 proceeding initiated by the Board of Managers of Half Moon Bay Marina Condominium and Maria Elena DiBella against the Board of Directors of Half Moon Bay Homeowners Association, Inc. The dispute arose over the voting rights of Marina directors on the HOA Board, which the HOA Board sought to restrict. The Supreme Court, Westchester County, ruled in favor of the petitioners, compelling the HOA Board to allow unrestricted voting. The Appellate Division affirmed this judgment, determining that the HOA's bylaws regarding voting rights were ambiguous. The court found that extrinsic evidence, including the HOA Board's historical practice, supported the interpretation that all directors had an unrestricted right to vote on all HOA matters.

Bylaws InterpretationVoting RightsCondominium LawHomeowners AssociationCPLR Article 78Contract InterpretationExtrinsic EvidenceBoard of DirectorsAppellate ReviewAmbiguity
References
11
Case No. MISSING
Regular Panel Decision

In re S. Children

This child protective proceeding was initiated by The Society for Prevention of Cruelty to Children against a father accused of sexually abusing his young son, Scott, in the presence of his older son, Jonathan. When Jonathan, an alleged eyewitness, became reluctant to testify in his father's presence, the petitioner requested his testimony be taken in camera. The court denied this application, citing the respondent's due process right to confront witnesses and finding insufficient evidence of a pathological impact on the child. The court emphasized the absence of statutory provisions for in camera testimony in such cases and suggested legislative consideration for future procedures to balance child protection with parental rights.

Child Protective ProceedingIn Camera TestimonyDue Process RightsRight to ConfrontationChild WitnessSexual Abuse AllegationsFamily Court ActWitness ReluctanceBalancing of InterestsExclusion of Respondent
References
6
Case No. MISSING
Regular Panel Decision

Kurz v. St. Francis Hospital

The defendants moved to preclude plaintiffs' expert testimony on causation or, alternatively, for a pretrial hearing regarding the plaintiff's vision loss. The plaintiff developed visual disturbances shortly after receiving Amiodarone intravenously following cardiac bypass surgery in 2008. Defendants argued a lack of scientific evidence linking short-term Amiodarone use to optic neuropathy, while the plaintiff's expert contended that rapid drug absorption could cause optic disc edema, a known side effect. Furthermore, the plaintiff highlighted medical records where defendant physicians themselves initially attributed the vision loss to the medication. The court, applying the Frye standard, determined that general causation—Amiodarone causing vision loss—is an established medical theory. It further ruled that the specific causation tests from Parker and Cornell, typically applied to toxic tort cases, were not strictly applicable here due to the distinct nature of medical malpractice. Consequently, the court denied the defendants' motion, finding an adequate foundation for the admissibility of the plaintiff's expert testimony, with any disputes regarding specific timing affecting only the weight of the evidence, not its admissibility.

Medical MalpracticeExpert TestimonyCausationAmiodaroneOptic NeuropathyVision LossMotion in LimineFrye StandardParker StandardCornell Standard
References
9
Case No. ADJ8075448
Regular
Oct 10, 2017

ALEX ROBLES vs. SOUTHERN CALIFORNIA GAS COMPANY, UTILITY WORKERS UNION OF AMERICA, STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board (WCAB) granted reconsideration of a trial judge's award in favor of applicant Alex Robles against Southern California Gas Company (SCGC). SCGC sought reconsideration, asserting that crucial testimony was omitted from the trial record. The WCAB ordered transcription of all trial testimony to ensure a full and fair adjudication of SCGC's petition. This action was necessary to allow the Board further study of the factual and legal issues involved.

Petition for ReconsiderationFindings and AwardAOE/COEGoing and Coming RuleMinutes of HearingSummary of EvidenceTrial TestimonyWCAB Rule 10740Transcript TranscriptionElectronic Adjudication Management System
References
2
Case No. MISSING
Regular Panel Decision

Claim of Washington v. Montefiore Hospital

Claimant, a mechanical engineer, sustained a work-related injury and received initial workers' compensation benefits. The employer later contested further disability, leading to a Workers' Compensation Law Judge (WCLJ) order for medical expert depositions, including one from the employer's expert, Robert Orlandi. Claimant's counsel objected to Orlandi's telephone deposition but failed to formally challenge the notice or raise a specific objection to the oath administration during the deposition. Orlandi's testimony, taken via telephone with the court reporter in New York and Orlandi in Connecticut, concluded that the claimant was no longer disabled. Both the WCLJ and the Workers' Compensation Board credited Orlandi's testimony, finding the claimant waived objections to the deposition's procedural irregularities. The Appellate Division affirmed the Board's decision, ruling that the claimant's failure to make a timely and specific objection to the oath's administration during the deposition constituted a waiver, thus allowing the Board to properly rely on Orlandi's evidence.

Workers' CompensationMedical TestimonyDeposition ProcedureWaiver of ObjectionCPLROath AdministrationDisability AssessmentAppellate ReviewExpert WitnessProcedural Irregularities
References
2
Case No. MISSING
Regular Panel Decision

Claim of Morelli v. Tops Markets

Claimant, having sustained work-related injuries in 2007 and receiving benefits, was questioned by a Workers' Compensation Law Judge (WCLJ) regarding work activities at a 2011 hearing. Immediately after, the employer and its carrier sought to introduce surveillance video and investigator testimony, alleging a violation of Workers' Compensation Law § 114-a. The WCLJ denied this request and precluded the evidence, ruling that the carrier failed to disclose the surveillance prior to the claimant's testimony. The Workers' Compensation Board affirmed this decision, reiterating the established requirement for timely disclosure of surveillance materials to prevent 'gamesmanship.' The appellate court subsequently affirmed the Board's decision, finding no arbitrary or capricious action, as the carrier had an opportunity to disclose the evidence before prompting the WCLJ's questioning and before the claimant testified.

Workers' Compensation LawSurveillance EvidenceDisclosure ObligationPreclusion of EvidenceAppellate ReviewEvidence AdmissibilityClaimant TestimonyEmployer ResponsibilitiesCarrier ResponsibilitiesBoard Decision
References
11
Case No. MISSING
Regular Panel Decision

Vogler v. Perrault

In October 2013, plaintiff was injured after falling from a ladder while working on a house owned by the defendant. Plaintiff subsequently filed an action alleging violations of Labor Law §§ 200, 240, and 241, alongside common-law negligence. Defendant sought summary judgment, arguing for the homeowner's exemption and denying other claims, but the Supreme Court denied the motion, citing triable issues of fact. The appellate court affirmed this denial, noting conflicting testimony regarding the defendant's intent to use the property for commercial purposes, which precluded summary judgment on the homeowner's exemption. Furthermore, the defendant failed to prove he did not create or have notice of the dangerous condition—a short ladder—thus justifying the denial of summary judgment for the Labor Law § 200 and common-law negligence claims.

Labor LawHomeowner's ExemptionSummary JudgmentLadder FallConstruction AccidentPersonal InjuryAppellate ReviewDangerous ConditionCommon-Law NegligenceProperty Owner Liability
References
21
Case No. MISSING
Regular Panel Decision

Emmi v. Emmi

Plaintiff Anthony Emmi commenced this action to recover for injuries he sustained when he fell from a scaffold while working on the construction of the defendant’s house. His wife, Natalie Emmi, sought damages in a derivative action. The IAS Court initially granted partial summary judgment to the plaintiffs on the issue of the defendant’s liability under Labor Law § 240 and Workers’ Compensation Law § 11. The appellate court found that the defendant homeowner’s extensive involvement in the construction project, acting as a general contractor and overseeing the entire project, precluded him from the one and two-family dwelling exception to strict liability under Labor Law § 240. However, the court also determined that the plaintiff’s employment was not covered under the Workers’ Compensation Law because the defendant was not carrying on a business for pecuniary gain. Therefore, the order was modified to remove liability under Workers' Compensation Law § 11.

Scaffold fallconstruction injuryLabor Law § 240Workers' Compensation Lawhomeowner liabilityone and two-family dwelling exceptiongeneral contractorpecuniary gainderivative actionsummary judgment
References
5
Case No. MISSING
Regular Panel Decision

Farias v. Simon

This dissenting memorandum concerns the applicability of the homeowners' exemption under Labor Law §§ 240 (1) and 241 (6) in a personal injury case involving a workman. Defendants, Simon and Parry, owned a single-family home undergoing renovation where the plaintiff was injured. The dissent argues that the motion court erred in granting summary judgment to the defendants, contending that there is a triable issue of fact regarding whether the defendants intended to use the property for commercial purposes at the time of the accident. Evidence presented, such as the defendants never residing at the property, extensive renovations, and discussions about renting, casts doubt on their claim that commercial intent materialized only after the incident. The dissent advocates for reversing the summary judgment and allowing the issue of subjective intent to be resolved at trial.

Homeowners' exemptionLabor Law liabilityCommercial intentSummary judgmentCredibility determinationRenovation projectPlaintiff injuryEvidentiary disputeProperty useAppellate dissent
References
6
Case No. MISSING
Regular Panel Decision

People v. Ackerson

In a felony driving while intoxicated trial, defendant Scott Ackerson moved to preclude the testimony of an emergency medical technician (EMT), Diane Wood, citing the physician-patient privilege under CPLR 4504(a). The court denied the motion, stating that evidentiary privileges, being in derogation of common law, must be strictly construed. The Legislature has not explicitly extended this privilege to EMTs, despite creating other specific privileges. The court found no evidence that the EMT acted as an agent for a physician. The opinion emphasized that an EMT's role is to stabilize patients, distinct from a physician's role of diagnosis and treatment, thus not falling within the purpose of the CPLR 4504 privilege.

PrivilegeEmergency Medical TechnicianEMTPhysician-Patient PrivilegeCPLR 4504Statutory InterpretationEvidentiary PrivilegeFelony DWITestimony PreclusionAgency
References
6
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