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

Case No. 2022 NY Slip Op 01758 [203 AD3d 531]
Regular Panel Decision
Mar 15, 2022

Valentine v. 2147 Second Ave. LLC

Michael Valentine, a project safety coordinator for Homeland Safety Consultants, sued 2147 Second Avenue LLC and other defendants for injuries sustained at a demolition and construction site. The Supreme Court, Bronx County, granted summary judgment to defendants Gary Silver Architects, P.C. and Sunshine Quality Construction, Inc., dismissing the complaint against them, and denied Valentine's motion for partial summary judgment on his Labor Law § 240 (1) claim. The Appellate Division, First Department, affirmed this decision, finding no evidence of affirmative negligence by GSA and concluding that Sunshine was not on site as a general contractor until after the accident. The court also upheld the denial of Valentine's Labor Law claim, noting it was never properly pleaded in his complaints.

Demolition ProjectConstruction AccidentProject Safety CoordinatorSummary JudgmentLabor Law § 240 (1)Affirmative NegligenceGeneral Contractor LiabilityPleading AmendmentsAppellate ReviewPremises Liability
References
4
Case No. SFO 503274
Regular
Apr 02, 2008

RONALD KIHARA vs. UNIVERSITY OF CALIFORNIA, SEDGWICK CLAIMS MANAGEMENT SERVICES

The Appeals Board granted the defendant's Petition for Removal, rescinding the prior order for a second QME panel. This action was taken because the Administrative Law Judge mistakenly believed both parties agreed to the second panel. The case is now returned to the trial level for further proceedings to determine if a second QME panel is indeed necessary.

Petition for RemovalSecond QME PanelUnrepresented CaseMedical DirectorQualified Medical EvaluatorsSubstantial EvidenceWCJFinding and OrderRescindedTrial Level
References
0
Case No. ADJ9860385 ADJ9860124
Regular
Mar 27, 2017

JANICE HASLEY vs. FRITO-LAY, INC., ACE AMERICAN INSURANCE COMPANY, SEDGWICK CLAIMS MANAGEMENT SERVICES, INC.

This case concerns applicant Janice Hasley's request for a second Qualified Medical Evaluator (QME) panel for a cumulative trauma injury claim. The Board granted reconsideration, treating Hasley's petition as one for removal. The original findings denied the request for a second QME panel, which the Board rescinded due to an unclear record regarding claim forms and injury specifics. The case is returned to the trial level for further development of facts to determine if a second QME panel is warranted under *Navarro v. City of Montebello*.

QME panelNavarro v. City of MontebelloLabor Code sections 4062.3(j)4064cumulative trauma injuryspecific injury claimDeclaration of Readiness to ProceedPetition for Reconsiderationremovalrescinded Findings of Fact
References
1
Case No. ADJ11139513
Regular
Jul 23, 2018

TEMPE EVERSON vs. STATE OF CALIFORNIA, CTF SOLEDAD, STATE COMPENSATION INSURANCE FUND

This case concerns the proper Qualified Medical Evaluator (QME) panel selection after an applicant became represented by an attorney. Initially unrepresented, applicant received QME panel #2194142, but no evaluation occurred before she retained counsel. A new panel, #2200955, was issued for represented cases, from which applicant timely struck a physician. However, the defendant's strike from this second panel was found to be untimely. The Appeals Board granted removal, amended the prior order, and directed the parties to proceed with an evaluation by Dr. Scheinbaum from the second panel, deeming it the appropriate one.

Petition for RemovalQualified Medical Evaluator (QME) panelrepresented vs. unrepresentedtimely strikeRomero v. CostcoLabor Code section 4062.1Labor Code section 4062.2Code of Civil Procedure section 1013Razo v. Las Posas Country Clubcomprehensive medical-legal evaluation
References
3
Case No. 2025 NYSlipOp 07295
Regular Panel Decision
Dec 24, 2025

Morales v. 88th Ave. Owner, LLC

The plaintiff, Elihu Romero Morales, was injured at a construction site in Queens when struck in the eye by a spark from ironwork. He sued 88th Avenue Owner, LLC, and NY Developers & Managers, Inc., alleging violations of Labor Law §§ 240(1) and 241(6). The defendants then initiated a second third-party action against subcontractors Feinstein Iron Works, Inc., and Construction Realty Safety Group, Inc., for contribution and indemnification. The Supreme Court initially granted the plaintiff's motion for summary judgment on liability and dismissed the second third-party complaint with prejudice. The Appellate Division, Second Department, modified this order, denying the plaintiff's summary judgment motion, awarding summary judgment to the defendants on the Labor Law claims, and directing the dismissal of the second third-party complaint without prejudice due to a four-year delay in its commencement. The Court found Labor Law § 240(1) inapplicable as sparks are not objects requiring securing for elevation-related hazards, and 12 NYCRR 23-1.8(a) inapplicable as the plaintiff was not directly engaged in the eye-endangering operation.

Construction AccidentLabor LawSummary JudgmentElevation-Related HazardThird-Party ActionDismissal Without PrejudiceSparksEye InjurySubcontractor LiabilityOwner Liability
References
22
Case No. 2022 NY Slip Op 05756 [209 AD3d 495]
Regular Panel Decision
Oct 13, 2022

Lopez v. 157-161 E. 28th St., LLC

This case involves an appeal concerning the dismissal of second third-party claims for breach of contract, unpaid overtime wages, and breach of constructive trust related to a construction project. The Appellate Division affirmed the Supreme Court's decision, determining that New Wave Contracting Corp., a subcontractor, was the direct employer of the individual second third-party plaintiffs, not the general contractors Iceberg Developing Co., LLC and Forkosh Construction Co., Inc. The court also found that signed lien waivers and releases by the individual second third-party plaintiffs validly barred their wage and contract claims, as payment was accepted without objection. Furthermore, constructive trust claims were correctly dismissed due to the lack of contractual privity between the individual second third-party plaintiffs and the general contractors.

Construction ProjectSubcontractor LiabilityWage ClaimsLien LawSummary JudgmentEmployer-Employee RelationshipContractual PrivityRelease WaiverAppellate ReviewThird-Party Claims
References
8
Case No. ADJ7712746
Regular
Dec 08, 2015

Glen Rizuto vs. United Parcel Service, Gallagher Bassett

The Appeals Board granted UPS's Petition for Removal, rescinding the WCJ's order to negotiate a QME selection. The Board found the WCJ erred by not addressing UPS's contentions regarding the validity of the second QME panel issued over 24 months after the first. UPS successfully argued they would be prejudiced if forced to negotiate when the second panel was allegedly the only valid one. The Board ordered parties to select a QME from the July 2, 2014 panel, allowing each to strike one name.

Petition for RemovalQualified Medical Evaluator (QME)Panel SelectionCumulative Trauma InjuryLabor Code Section 4062.1Labor Code Section 4062.2Romero v. Costco WholesaleIrreparable HarmPrejudiceMedical Unit
References
3
Case No. G107 435
Regular Panel Decision
Jun 02, 2023

Matter of Marku v. ABM Industries

This case concerns the claim of Denise Perry under the Workers' Compensation Law. The Workers' Compensation Law Judge (WCLJ) previously found that the employer, Adventist Home Care, established a violation of Workers' Compensation Law § 114-a by the claimant for willfully making false statements to obtain benefits. Consequently, the WCLJ disallowed indemnity benefits and imposed both mandatory and discretionary penalties. A Board Panel decision filed on February 17, 2022, affirmed the WCLJ's findings. The claimant subsequently filed an application for reconsideration on March 18, 2022, which the Board Panel reviewed. After considering the claimant’s arguments, the Board Panel determined that the application did not raise new issues or present new material evidence, nor did it demonstrate an erroneous statement of material fact or law in the prior decision. Therefore, the Board Panel, by a majority vote, affirmed its prior decision.

Workers' Compensation FraudFalse RepresentationIndemnity Benefits DisallowanceWCL § 114-a PenaltyApplication for Reconsideration DeniedBoard Panel AffirmationWillful MisrepresentationWorkers' Compensation Law Judge DecisionEmployer Established Violation
References
0
Case No. MISSING
Regular Panel Decision

MLF3 Airitan LLC v. 2338 Second Avenue Mazal LLC

This case involves MLF3 Airitan LLC and MLF3 DC LLC (plaintiffs) suing 2338 Second Avenue Mazal LLC, 167th Street Mazal LLC, Eran Polack, Amir Hasid, Nir Amsel, Bank Leumi USA, and John Doe numbers 1 through 10 (defendants) for breach of fiduciary duty, trust fund diversion, and a declaratory judgment regarding mechanic's liens. Plaintiffs sought an accounting, damages, and priority for their mechanic's liens over Bank Leumi's liens, citing improper notice of lending and unfiled material modifications to loan agreements under the Lien Law. Defendants Bank Leumi and the Mazal entities cross-moved to dismiss based on various procedural grounds and failure to state a cause of action. The court granted Bank Leumi's motions to dismiss the fourth and fifth causes of action concerning the priority claims. However, it denied the defendants' motion to dismiss the sixth cause of action, allowing the action to proceed concurrently with a lien foreclosure action. Additionally, the court granted plaintiffs' cross-motions for an interim accounting and for consolidation of the actions.

Mechanic's LiensDeclaratory JudgmentTrust Fund DiversionBreach of Fiduciary DutyBuilding Loan AgreementLien Law Article 3-AMotion to DismissInterim AccountingConsolidation of ActionsPriority Disputes
References
35
Case No. 2022 NY Slip Op 02063
Regular Panel Decision
Mar 24, 2022

Hasenzahl v. 44th St. Dev. LLC

The Appellate Division, First Department, considered an appeal concerning a Supreme Court order that granted a motion to sever and stay a second third-party action, and denied a motion for summary judgment. The court found that the Supreme Court providently exercised its discretion in severing and staying the second third-party action, citing that joint tortfeasors are not necessary parties. It further noted that Gateway and Woodworks' subcontracts provided for joint and several liability, allowing for apportionment in a separate proceeding. However, the Appellate Division modified the order by granting Gateway's motion for summary judgment, dismissing the common-law indemnification and contribution claims against it. This dismissal was based on the Workers' Compensation Law § 11, as the plaintiff, Gateway's employer, did not sustain a grave injury.

Appellate PracticeThird-Party ActionsSeverance and StaySummary JudgmentCommon-Law IndemnificationContribution ClaimsWorkers' Compensation LawGrave InjuryJoint and Several LiabilitySubcontractor Agreements
References
5
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