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Case No. 2021 NY Slip Op 06069 [199 AD3d 438]
Regular Panel Decision
Nov 09, 2021

Matter of Ashanti v. New York City Conflicts of Interest Bd.

The Appellate Division, First Department, confirmed the determination of the New York City Conflicts of Interest Board, finding that petitioner Karl J. Ashanti violated New York City Charter and City rule provisions. Ashanti was ordered to pay an aggregate civil penalty of $8,500. The court found substantial evidence supported the determination that Ashanti used his City position to gain personal advantage in negotiations on behalf of his wife and utilized City letterhead to advance a legal position contrary to the City's interests. The court rejected the petitioner's due process and agency bias claims, concluding that the penalty imposed did not shock the conscience.

Conflicts of InterestPublic OfficialsEthical ViolationsCivil PenaltyDue ProcessAgency BiasSubstantial EvidenceAppellate ReviewAdministrative Law JudgeCredibility Determinations
References
4
Case No. MISSING
Regular Panel Decision

Perez v. Arya National Shipping Line, Ltd.

Luis Perez, a longshoreman injured in 1973, commenced an action against a shipowner in 1975, fifteen months after receiving compensation under the Longshoremen’s and Harbor Workers' Compensation Act (LHWCA). The shipowner moved to dismiss the complaint, arguing that Perez's right to sue was assigned to his employer because he failed to initiate the action within the six-month statutory period outlined in LHWCA section 33(b). Perez invoked the "conflict of interest" exception established in Czaplicki v. The Hoegh Silvercloud. The court examined who bears the burden of proof for this exception, ultimately siding with the defendant's position that the employee must demonstrate such a conflict. The defendant's motion to dismiss was denied, but Perez was given forty-five days to present competent evidence of a conflict of interest.

Longshoremen's and Harbor Workers' Compensation ActConflict of InterestAssignment of ClaimsMotion to DismissBurden of ProofStatutory InterpretationThird-Party LiabilityEmployer IndemnificationWorkers' Compensation BoardMaritime Law
References
12
Case No. MISSING
Regular Panel Decision

In Re New York City Off-Track Betting Corp.

Finger Lakes Racing Association and Empire Resorts, Inc. moved to compel New York City Off-Track Betting Corporation (OTB) to pay post-petition statutory distributions under the New York Racing, Pari-Mutuel Wagering and Breeding Law, arguing they were mandated and qualified as administrative expenses. The Court denied administrative expense status, reasoning that no "estate" exists in Chapter 9 cases to incur such expenses. Citing ambiguity in the state's Racing Law, paramount federalism concerns, and the regulatory authority of the New York State Racing and Wagering Board, the Court abstained from ruling on the specific payment schedule for these distributions. Consequently, the automatic stay was lifted, and the parties were ordered to seek a determination from the Racing and Wagering Board and engage in mediation to resolve the ongoing disputes regarding OTB's restructuring and statutory payments.

Bankruptcy CourtChapter 9 DebtorMunicipal LawState RegulationOff-Track BettingHorse Racing IndustryStatutory InterpretationJudicial AbstentionComity and FederalismAdministrative Claims
References
42
Case No. MISSING
Regular Panel Decision

Susino v. Hellenic Lines Ltd.

Guiseppe Susino, a longshoreman, sued Hellenic, the vessel owner and his employer, for personal injuries sustained in 1977. Susino filed the suit in 1979, after the six-month period following his compensation award, a timeframe during which his right to sue a third party would typically be assigned to his employer under 33 U.S.C. 933(b) of the LHWCA. Hellenic moved to dismiss the complaint, arguing the action was barred. The court considered the serious conflict of interest, as Hellenic would be suing itself if the right were assigned. Citing Czaplicki v. The Hoegh Silvercloud, the court held that where a demonstrable conflict of interest exists, an injured longshoreman retains the right to sue a third party despite the expiration of the statutory period. Consequently, the defendant's motions to dismiss and for summary judgment were denied.

Longshoremen’s and Harbor Workers’ Compensation ActLHWCAConflict of InterestAssignment of ClaimThird-Party ActionStatutory PeriodMotion to DismissSummary JudgmentAdmiralty LawFederal Rules of Civil Procedure Rule 12(b)(6)
References
9
Case No. MISSING
Regular Panel Decision

Stromski v. Jefferson Auto Body

The claimant, an auto body repairer for 27 years, sought workers' compensation benefits for stomach cancer, attributing it to occupational exposure to chromium and talc. The Workers’ Compensation Board denied his claim, concluding that his disease was not causally related to his occupation after resolving conflicting expert medical testimony against him. The Board credited the carrier's expert, an internal medicine specialist, who testified that studies only link a specific type of chromium to carcinogenicity in the upper respiratory tract, not stomach cancer. This expert testimony successfully rebutted the statutory presumption of compensability under Workers’ Compensation Law § 21. The appellate court affirmed the Board's decision, emphasizing that resolving conflicts in medical testimony, particularly regarding causation, falls within the Board's province. Additionally, the claimant's appeal from the denial of reconsideration was deemed abandoned.

Occupational DiseaseStomach CancerCausationMedical Expert TestimonyChromium ExposureTalc ExposureBurden of ProofStatutory PresumptionAppellate ReviewBoard Decision Affirmed
References
4
Case No. MISSING
Regular Panel Decision

County of Chautauqua v. Civil Service Employees Ass'n, Local 1000

The Civil Service Employees Association (CSEA) sought arbitration regarding layoffs and displacement rights under its collective bargaining agreement (CBA) with the County of Chautauqua. The County argued that the CBA's provisions on seniority-based layoffs and interdepartmental displacement conflicted with Civil Service Law § 80, asserting these issues were non-arbitrable due to public policy. After conflicting lower court decisions, the Court of Appeals held that the CBA's layoff provision, which prioritized seniority over the employer's prerogative to determine staffing needs, violated public policy and was thus not arbitrable. However, the court found no explicit statutory or public policy prohibition against interdepartmental displacement rights, allowing arbitration on that specific grievance. Consequently, the Appellate Division's order was modified, staying arbitration for the layoff grievance but compelling it for the displacement rights grievance.

Collective Bargaining AgreementLayoffsDisplacement RightsCivil Service Law § 80ArbitrabilityPublic Policy ExceptionManagement PrerogativeSeniority RightsInterdepartmental BumpingTaylor Law
References
22
Case No. MISSING
Regular Panel Decision

In re Lawrence Children

This consolidated opinion addresses a motion brought by minor parents, Barbara Allen and Gail Lawrence, who are respondents in separate neglect proceedings initiated by the Administration for Children’s Services (ACS). The parents, who are or recently were in foster care, argue that ACS has a conflict of interest in prosecuting neglect cases against individuals for whom it also serves as parens patriae. They sought an order to relieve ACS as petitioner and appoint a special prosecutor. The court, presided over by Daniel Turbow, J., denied the motion, concluding that no legal basis exists for the requested relief, as any alleged conflict is inherent in ACS’s statutory obligations. However, the court urged ACS to consider the age of minor parents in such cases and suggested utilizing Social Services Law § 398 to assume care of destitute children without necessarily imposing a neglect finding, emphasizing that minors should not be held to the same standard of care as adults.

Child NeglectFoster CareMinor ParentsConflict of InterestSpecial ProsecutorFamily Court Act Article 10Social Services LawParens PatriaeLaw GuardianStandard of Care for Minors
References
25
Case No. MISSING
Regular Panel Decision

Hernandez v. Costa Armatori, S.P.A.

Plaintiff, a longshoreman, suffered injuries in January 1974 while employed by John W. McGrath Corp. on the defendant's vessel. He received a $5,827.10 compensation award under the Longshoremen’s and Harbor Workers’ Compensation Act in February 1975. Twenty-two and a half months later, in December 1976, he filed suit against the vessel owner. The defendant moved for summary judgment, arguing the claim was assigned to the employer under Section 933(b) of the Act because the plaintiff did not sue within six months of the award payment. The court held that the settlement agreement, despite not being signed by a deputy commissioner, constituted an 'award in a compensation order' under Section 933(b), thus triggering the six-month assignment period. The court further addressed the plaintiff's 'conflict of interest' argument, distinguishing it from precedent like Czaplicki, and found the asserted conflicts were inherent in the statutory scheme and not sufficient to invalidate the assignment. Consequently, the defendant's motion for summary judgment was granted, and the complaint was dismissed.

Longshoremen's and Harbor Workers' Compensation ActSummary JudgmentStatutory AssignmentConflict of InterestPermanent Partial DisabilityEmployer LiabilityVessel OwnerStevedoreCompensation OrderSix-Month Rule
References
10
Case No. MISSING
Regular Panel Decision

Sara Lee Corp. v. Bags of New York, Inc.

Sara Lee Corporation filed an action claiming defendants produced and sold counterfeit trademarked Coach Leatherware products, violating the Trademark Act of 1946. Following defendants' failure to respond, a default judgment was entered, and the court retained jurisdiction to determine damages. Despite court orders, seizures, and civil contempt findings, defendant Nabil Helou and his associated businesses persisted in their counterfeiting activities. The court, noting the defendants' willful infringement, efforts to mislead, and defiance of deterrence, awarded Sara Lee $750,000 in statutory damages and $46,045.63 in attorney fees and costs.

Trademark InfringementCounterfeitingStatutory DamagesAttorney FeesWillful InfringementDefault JudgmentInjunctive ReliefDeterrencePunitive DamagesCivil Contempt
References
15
Case No. MISSING
Regular Panel Decision

United States v. Lipsky

Richard Lipsky, convicted of bribery and conspiracy to commit bribery, sought an exemption from the Labor-Management Reporting and Disclosure Act (LMRDA) prohibition on working for labor unions. The Department of Justice did not object, but the Department of Labor opposed the motion. The Court granted Lipsky's motion, finding that he demonstrated rehabilitation since his release from imprisonment in 2013. His work for the National Association of Criminal Defense Lawyers and pro bono efforts, along with a clean record, supported this finding. The Court also determined that his proposed role as a consultant for the United Food and Commercial Workers Union, focusing on criminal justice reforms and not involving lobbying or fund handling, would not conflict with the LMRDA's purpose of preventing corruption in labor organizations.

RehabilitationLMRDA ExemptionBribery ConvictionLabor Union ConsultantCriminal Justice ReformFederal CourtJudicial DiscretionSentencing GuidelinesPost-Conviction ReliefEthical Conduct
References
2
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