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

Case No. 13-ev-3288; 13-cv-4244
Regular Panel Decision

Alzheimer's Disease Resource Center, Inc. v. Alzheimer's Disease & Related Disorders Ass'n

This case involves two related lawsuits stemming from the disaffiliation of the Alzheimer’s Disease Resource Center, Inc. (ADRC) from the Alzheimer’s Disease and Related Disorders Association (the Association). In case 13-ev-3288, ADRC alleged unfair competition, false advertising, and other claims. The Court denied dismissal for false advertising under the Lanham Act, New York General Business Law § 349, and unjust enrichment, but granted dismissal for trademark infringement, common law unfair competition, UCC violations, conversion, tortious interference, and fraud. In case 13-cv-4244, ADRC alleged breach of contract and misappropriation of trade secrets related to donor lists. The Court granted the Association's motion to dismiss this complaint in its entirety. Punitive damages were stricken for Lanham Act and unjust enrichment claims.

Unfair CompetitionLanham ActFalse AdvertisingTrademark InfringementNew York General Business Law § 349Unjust EnrichmentMotion to DismissBreach of ContractTrade Secret MisappropriationConversion
References
55
Case No. MISSING
Regular Panel Decision
Oct 12, 2010

Gunther v. Capital One, N.A.

Plaintiff Eric Gunther filed a class action against Capital One Bank and Capital One Financial Corporation, alleging improper banking fees. Gunther, a former North Fork Bank customer, became a Capital One Bank account holder after a merger. He claimed Capital One Bank increased fees, including ATM withdrawal and overdraft fees, without proper notice, charged 'Undeliverable Mail Fees,' deceptively marketed 'free checking,' and failed to provide fee schedule notifications. The Court dismissed most of Gunther's breach of contract claims, except for the 'Undeliverable Mail Fees' claim. Claims under the Connecticut Unfair Trade Practices Act and for unjust enrichment were also dismissed. A New York General Business Law § 349 claim was dismissed with leave to replead. The Court denied dismissal for the declaratory judgment claim against Capital One Bank. All claims against Capital One Financial were dismissed, as the plaintiff failed to establish direct or indirect liability through corporate veil piercing.

Consumer Class ActionBanking FeesBreach of ContractMotion to DismissCorporate Veil PiercingTruth in Savings Act (TISA)Unjust EnrichmentDeclaratory JudgmentStanding to SueNew York General Business Law
References
33
Case No. 2017 NY Slip Op 08303
Regular Panel Decision
Nov 28, 2017

Prevost v. One City Block LLC

Plaintiff Ronald Prevost, a laborer, was injured after slipping on a loose sprinkler pipe at a construction site owned by One City Block LLC. He and his wife sued One City for common-law negligence and Labor Law violations. One City then commenced a third-party action against Island Fire Sprinkler, Inc., the subcontractor responsible for installing the sprinkler system, seeking contractual and common-law indemnification and alleging breach of contract for failure to procure insurance. The Supreme Court denied various summary judgment motions. On appeal, the Appellate Division modified the order, granting One City's motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims, and granting One City's claim for contractual indemnification by Island Fire. The court also denied Island Fire's motion for summary judgment dismissing One City's claim against it for contractual indemnification and breach of contract for failure to procure insurance. Finally, the Appellate Division affirmed the denial of One City's motion for post-note-of-issue discovery seeking additional independent medical examinations of plaintiff.

Construction accidentLabor LawPremises liabilitySummary judgmentContractual indemnificationBreach of contractInsurance procurementPost-note-of-issue discoveryIndependent medical examinationAppellate procedure
References
16
Case No. MISSING
Regular Panel Decision
Jul 02, 2010

Blyer v. ONE STOP KOSHER SUPERMARKET, INC.

Alvin Blyer, Regional Director of NLRB Region 29, petitioned the District Court for interim relief against One Stop Kosher Supermarket, Inc. under 29 U.S.C. § 160(j). The Director sought an order compelling One Stop to bargain with Local 338, Retail, Wholesale and Department Store Union, after One Stop failed to honor a recognition agreement. The administrative law judge (ALJ) found the recognition agreement binding. The District Court granted the petition, finding reasonable cause for unfair labor practices and irreparable harm to the Union's collective bargaining rights, ordering One Stop to provide information and bargain, but stipulating that any agreement not be implemented until the NLRB's final decision.

National Labor Relations BoardUnfair Labor PracticesInterim InjunctionCollective BargainingUnion RecognitionLabor LawDistrict CourtSection 10(j)Employer-Union RelationsMandatary Injunction
References
14
Case No. 2022 NY Slip Op 05053 [208 AD3d 818]
Regular Panel Decision
Aug 24, 2022

Thorpe v. One Page Park, LLC

Lorenzo Thorpe, an employee at a construction site owned by One Page Park, LLC, sustained injuries after falling into a 14-16 foot deep pit. He commenced a personal injury action against One Page Park, LLC and A-W Coon & Sons, Inc., alleging common-law negligence and violations of Labor Law §§ 200, 240 (1), and 241 (6). The Supreme Court initially granted summary judgment to the defendants and denied the plaintiff's cross-motion for summary judgment on liability. Upon reargument, the Appellate Division, Second Department, modified the order, denying the defendants' motion for summary judgment on the Labor Law § 240 (1) cause of action against One Page Park, LLC, citing elevation-related risk and triable issues of fact. The court affirmed the denial of the plaintiff's cross-motion for summary judgment on liability under Labor Law § 240 (1).

Personal InjuryConstruction AccidentLabor Law Section 240(1)Elevation-Related HazardSummary Judgment MotionReargumentAppellate ReviewProximate CauseTriable Issue of FactProperty Owner Liability
References
18
Case No. MISSING
Regular Panel Decision

Claim of Konieczny v. Butterflake Shop

Claimant appealed a decision by the Workers’ Compensation Board, filed December 8, 1977, which ruled that he did not suffer from an occupational disease. The claimant, employed as a baker, was diagnosed with severe chronic obstructive pulmonary disease, asthmatic bronchitis, and emphysema, following a history of heavy smoking. The record contained conflicting medical evidence regarding the link between his employment and his condition. The court affirmed the Board's determination, holding that when medical proof is contradictory, the question of occupational disease is one of fact for the Board, and their finding was supported by substantial evidence, particularly Dr. Riley's testimony.

Occupational DiseaseWorkers' CompensationChronic Obstructive Pulmonary DiseaseAsthmatic BronchitisEmphysemaConflicting Medical EvidenceQuestion of FactSubstantial EvidenceAppellate ReviewMedical Testimony
References
2
Case No. 2008 NY Slip Op 30920(U)
Regular Panel Decision
Mar 31, 2008

Silverite Construction Co. v. One Beacon Insurance

Plaintiffs Silverite Construction Company, Inc. and the New York City Department of Environmental Protection's motion for summary judgment was denied, and defendant One Beacon Insurance Company's motion for summary judgment was granted and affirmed. The court rejected plaintiffs' excuse for their 2 1/2-month late notice of a worker's injury, citing evidence such as the worker's removal by ambulance, an accident report, missed work, limited duties upon return, and a filed notice of claim. One Beacon's disclaimer was deemed timely following a brief investigation into the plaintiffs' status as additional insureds. This decision highlights the necessity of timely notification in insurance claims, irrespective of the perceived likelihood of a claim.

Summary JudgmentInsurance LawLate NoticeWorker InjuryAdditional InsuredDisclaimerAppellate ReviewConstruction SiteAccident ReportTimely Notice
References
1
Case No. ADJ10489999
Regular
Feb 01, 2019

Sean Lawson vs. Zenith Insurance Company

This case involves a dispute over the permanent disability rating for applicant Sean Lawson's low back injury. The defendant, Zenith Insurance Company, argues that the Range of Motion (ROM) method used by the Qualified Medical Evaluator (QME) was inappropriate, and the Diagnosis-Related Estimates (DRE) method should have been applied as there was only one level of radiculopathy. The Workers' Compensation Appeals Board (WCAB) affirmed the WCJ's finding that the ROM method was appropriate based on the QME's expert opinion and the AMA Guides' provision for its use with multi-level involvement. However, one Commissioner dissented, believing the DRE method was mandated given the lack of evidence for multi-level radiculopathy.

WCABPetition for ReconsiderationPermanent DisabilityApportionmentNon-industrial factorsDiagnosis-Related Estimates (DRE) methodRange of Motion (ROM) methodQualified Medical Evaluator (QME)AMA GuidesMultilevel radiculopathy
References
1
Case No. 2019 NY Slip Op 06521 [175 AD3d 1331]
Regular Panel Decision
Sep 11, 2019

People v. Snyder

The defendant, Crystal Snyder, appealed an order from the Supreme Court, Queens County, which designated her a level two sex offender under the Sex Offender Registration Act (SORA). Snyder, who had pleaded guilty to federal sex trafficking conspiracy, argued for a downward departure to a level one designation, contending she was a victim herself of the commercial sex trade. The Appellate Division, Second Department, found that the circumstances of her exploitation as a minor and her limited management role, without evidence of recruiting or coercing victims, constituted a mitigating factor not adequately considered by the SORA Guidelines. Consequently, the court reversed the Supreme Court's order, granting Snyder's application for a downward departure and designating her a level one sex offender.

Sex Offender Registration ActSORADownward DepartureRisk LevelSex Trafficking ConspiracyVictim ExploitationAppellate ReviewMitigating FactorsFederal ConvictionPresumptive Risk Category
References
6
Case No. CV-23-0985
Regular Panel Decision
Aug 08, 2024

People v. Waterbury

This case involves an appeal by Alexander Waterbury from two County Court orders classifying him as a risk level two sex offender under New York's Sex Offender Registration Act (SORA). Waterbury, who pleaded guilty to felonious sexual assault in New Hampshire involving a 14-year-old student he coached, sought a downward departure to risk level one. The Appellate Division, Third Department, reversed the lower court's decision, finding that Waterbury demonstrated mitigating factors not adequately considered by the Risk Assessment Instrument (RAI). These factors included positive psychometric test results indicating a low risk of reoffending, extensive expert opinions, and strong familial support. The Court concluded that the totality of circumstances warranted classifying Waterbury as a risk level one sex offender.

Sex Offender Registration Act (SORA)Risk Level ClassificationDownward DeparturePsychometric TestingFamilial SupportSexual RecidivismAppellate ReviewSexual AssaultOffender RehabilitationNew Hampshire Law
References
42
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