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

Case No. 2019 NY Slip Op 07699 [176 AD3d 587]
Regular Panel Decision
Oct 24, 2019

Rivera v. 11 W. 42 Realty Invs., L.L.C.

Plaintiff Humberto Rivera was injured while riding in an elevator filled with unsecured construction materials. Defendants 11 West 42 Realty Investors, L.L.C. and Tishman Speyer Properties, L.P. successfully appealed the denial of their motion for summary judgment, with the Appellate Division finding they established prima facie that they did not cause or have notice of the unsafe condition and only exercised general supervisory control. Conversely, defendants NTT Services, LLC and Pritchard Industries, Inc.'s motion for summary judgment was denied and affirmed on appeal. They failed to demonstrate they did not create a hazard or fully displace the duty to maintain safe premises, given that their employee permitted plaintiff to enter the elevator despite company rules against it. The court also noted unresolved issues regarding contractual indemnification for 11 West 42 Realty Investors, L.L.C.

Elevator AccidentPremises LiabilitySummary Judgment MotionNegligenceContractual IndemnificationGeneral Supervisory ControlUnsecured MaterialsWorker SafetyAppellate Review
References
3
Case No. 90 Civ. 1005 (RWS)
Regular Panel Decision

Schick v. Ernst & Young

The Investors sued Ernst & Young for securities fraud and common law fraud related to their investments in limited partnerships dealing with thoroughbred racehorses. The Investors alleged E&Y, as auditors, made material misrepresentations and omissions in the June 1986 Balance Sheet, which was part of a private placement memorandum for an exchange offer where limited partnership interests were rolled into shares of Select. E&Y moved to dismiss for failure to plead fraud with particularity under Fed.R.Civ.P. 9(b) and lack of subject matter jurisdiction. The court found that the amended complaint failed to specify the amount of alleged overstatement of accounts receivable, did not adequately plead fraudulent omission regarding affiliated transactions due to prior disclosures, and lacked sufficient particularity for E&Y's scienter regarding "going concern" and "liquidity" qualifications, and Kinderhill's indemnitor liabilities. Consequently, the federal claims were dismissed, and the state law claims were dismissed for lack of pendent jurisdiction, with leave granted to replead.

Securities FraudCommon Law FraudRule 9(b) Pleading StandardsPlead with ParticularityScienterAuditing MisrepresentationsFinancial StatementsLimited PartnershipsPonzi SchemeDismissal with Leave to Replead
References
21
Case No. MISSING
Regular Panel Decision

McAllister v. G & S INVESTORS

Plaintiff Shawn McAllister sustained severe and permanent back injuries after falling from a ladder while working as a dock builder at a demolition and reconstruction project in Port Chester, New York. His wife, Kimberly McAllister, seeks damages for loss of consortium. The plaintiffs allege negligence and claims under Section 240 of the New York State Labor Law and the Longshore and Harbor Workers’ Compensation Act (LHWCA) against defendants G & S Investors, Farmingdale Maintenance Services, Inc. (employer), and Loftus Contracting Corp. The parties filed cross-motions for summary judgment, which the court denied due to the existence of genuine issues of material fact. Additionally, the court denied the defendants' motion to dismiss the Section 240 claim on preemption grounds, holding that the state law is not preempted by the LHWCA.

Personal InjuryConstruction AccidentLadder FallSummary JudgmentPreemptionLongshore and Harbor Workers’ Compensation ActNew York Labor Law Section 240Dock BuilderWorkplace SafetyStrict Liability
References
19
Case No. MISSING
Regular Panel Decision

O'DONNELL v. First Investors Corp.

Plaintiff James R. O'Donnell, Jr. sued defendants First Investors Corporation (FIC) and Howard Froman concerning his employment contract. Defendants moved to compel arbitration, arguing the dispute falls under National Association of Securities Dealers, Inc. (NASD) rules, while O'Donnell contended pre-October 1993 NASD rules did not cover employment contracts and that a Memorandum of Understanding (MOU) superseded his initial employment agreement. The Court found the U-4 form, which included an arbitration clause, remained valid. It sided with the Eleventh Circuit's interpretation that pre-October 1993 NASD rules encompassed employment disputes, aligning with federal policy favoring arbitration. The motion to compel arbitration was granted, and the action was stayed, but the defendants' request for costs against the plaintiff was denied as O'Donnell's arguments were not deemed unreasonable given the split in judicial opinion.

Arbitration AgreementEmployment DisputeNASD RulesU-4 FormFederal Arbitration ActSecurities IndustryRegistered RepresentativeContract InterpretationJudicial PrecedentCircuit Split
References
18
Case No. MISSING
Regular Panel Decision

Butala v. Agashiwala

Twenty individual investors sued accountants Mahesh and Loma Agashiwala, alleging RICO violations and New York law claims for fraud, negligent misrepresentation, and breach of fiduciary duty related to fraudulent real estate investments. The defendants moved to dismiss, arguing the RICO claims were time-barred and that fraud was not pleaded with particularity. The court granted the motion, dismissing the RICO claims as untimely because the four-year statute of limitations began in February 1990, well before the February 1995 lawsuit filing, and plaintiffs failed to adequately plead fraudulent concealment and due diligence. Additionally, the complaint lacked particularity in pleading fraud under Fed.R.Civ.P. 9(b). The supplemental state law claims were also dismissed as the federal claims were no longer active, and the dismissal was without prejudice, allowing for an amended complaint.

RICO ActSecurities FraudMail FraudStatute of LimitationsFraudulent ConcealmentDue DiligenceMotion to DismissPleading with Particularity (Rule 9(b))Supplemental JurisdictionReal Estate Investments
References
42
Case No. MISSING
Regular Panel Decision

Gambella v. Guardian Investor Services Corp.

Plaintiff George Gambella alleged that defendants Guardian Investors Services Corporation and John McQueen violated federal securities law (Section 10(b) and Rule 10b-5) and various state laws. Gambella claimed McQueen, a sales representative for Guardian, fraudulently failed to execute sell orders for his 25,000 shares of United Entertainment Corporation (UENT) stock in January 1997, falsely stating the shares were illiquid. Gambella suffered over $100,000 in losses when the UENT stock became valueless due to alleged price manipulation by McQueen's former employer and others. Defendants moved to dismiss, arguing Gambella lacked standing under Rule 10b-5 as he was fraudulently induced to retain securities, not purchase or sell them. The Court granted the motion, agreeing that the 'aborted purchaser-seller exception' was not applicable post-Blue Chip Stamps, thus dismissing the federal claim and the remaining state law claims for lack of diversity jurisdiction.

Securities FraudRule 10b-5Section 10(b)Motion to DismissStandingAborted Purchaser-Seller ExceptionBlue Chip Stamps RuleBirnbaum RuleFraudulent InducementRetention of Securities
References
18
Case No. MISSING
Regular Panel Decision
Jul 27, 1993

Nichols v. Deer Run Investors, L.P.

Joel E. Nichols, a carpenter, sustained injuries after falling from an icy plank over an excavated ditch at a construction site owned by Deer Run Investors, L.P. Nichols sued the owners alleging negligence and violations of Labor Law §§ 240(1), 241-a, and 241(6). Defendants filed a third-party action against MCK Building Associates, Inc., Nichols' employer, for indemnification. The Supreme Court granted Nichols partial summary judgment on the Labor Law § 240(1) claim and denied defendants' cross-motions. The Appellate Division affirmed the Supreme Court's order, concluding that the incident involved an elevation-related risk under Labor Law § 240(1) and that factual issues precluded dismissal of the Labor Law § 241(6) and indemnification claims. The court also agreed that Labor Law § 241-a was inapplicable.

Construction AccidentLabor LawStatutory LiabilitySummary JudgmentIndemnificationWorkplace SafetyElevation RiskAppellate ReviewConstruction Site InjuryScaffolding Safety
References
12
Case No. MISSING
Regular Panel Decision

North 7-8 Investors, LLC v. Newgarden

The petitioner, North 7-8 Investors, LLC, sought a license under RPAPL 881 to enter the adjoining property of respondent Mark A. Newgarden for construction purposes, specifically for developing two seven-story buildings. Initially, the petitioner requested extensive access for shoring, roof protection, and scaffolding, leading to lengthy negotiations and respondent's objections regarding safety, architectural plans, and reimbursement for professional fees. As a result, the petitioner modified its plans significantly, reducing the need for direct access and proposing a cantilevered safety balcony into the respondent's air space. The court granted the petition for a one-year license with specific terms, including conditions for the safety balcony, insurance, indemnification, a monthly license fee of $3,500, and reimbursement for respondent's reasonable architectural and legal fees incurred in negotiation and enforcement, while denying the respondent's cross-motion for dismissal and sanctions.

Property LawReal Property Actions and Proceedings LawRPAPL 881License to EnterAdjoining PropertyConstruction LawAccess AgreementAttorney's FeesArchitectural FeesLicense Fees
References
11
Case No. MISSING
Regular Panel Decision

Longstreet Associates, L.P. v. Bevona

The case involves sixteen security guards dismissed from their jobs at the General Motors Building in Manhattan. Plaintiffs, Pembrook Management, Inc. (PMI), Longstreet Associates, L.P., and Corporate Properties Investors (CPI), sought to enjoin an arbitration proceeding initiated by the Union, Local 32B-32J of the Service Employees International Union. Plaintiffs argued the security guards were employed by a cleaning and maintenance contractor, Temco/Spartan, and thus expressly excluded from coverage under the Collective Bargaining Agreement (RAB Agreement). The Union contended that PMI was a joint employer with Temco/Spartan, meaning the guards were covered by the RAB Agreement's "work preservation provision." The court, after examining factors for joint employer status, found sufficient evidence that PMI had immediate control over the security guards in areas such as hiring, discipline, and day-to-day supervision. Consequently, the court denied the plaintiffs' motion for a preliminary injunction and dissolved the temporary restraining order, ruling that PMI, Longstreet, and CPI were obligated to arbitrate the dispute under the RAB Agreement.

Joint EmployerArbitrationCollective Bargaining AgreementPreliminary InjunctionLabor RelationsSecurity GuardsUnion DisputeContract InterpretationWork PreservationSecond Circuit
References
16
Case No. Bankruptcy No. 06 B 22306(ASH), Adversary No. 06-08293A
Regular Panel Decision
Feb 23, 2007

In Re Bayou Group, LLC

This case concerns motions to dismiss ninety-five adversary proceedings filed by Bayou Superfund, LLC, Bayou No Leverage Fund, LLC, and Bayou Accredited Fund, LLC (collectively, Bayou Hedge Funds), debtors-plaintiffs, against investors for alleged fraudulent conveyances. The plaintiffs assert that their pre-petition principals operated a massive Ponzi scheme, falsifying financial reports and using new investor funds to make redemption payments to earlier investors, thereby creating non-existent profits and inflated account balances. The court denied the defendants' motions to dismiss, ruling that the existence of a Ponzi scheme inherently implies actual intent to defraud under Bankruptcy Code Section 548(a)(1)(A), and that claims for both actual and constructive fraud were adequately pleaded, allowing the cases to proceed to discovery and trial.

Ponzi SchemeFraudulent ConveyanceBankruptcy ProceedingsDebtors and Creditors LawActual FraudConstructive FraudMotions to DismissHedge FundsInvestment FraudFinancial Misrepresentation
References
48
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