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

Case No. 2021 NY Slip Op 02784 [194 AD3d 691]
Regular Panel Decision
May 05, 2021

David v. David

The infant plaintiff was injured in an automobile accident. The plaintiffs sought approval for a settlement, but Horizon Blue Cross Blue Shield of New Jersey, the administrator of the infant plaintiff's mother's self-funded employee benefit plan, asserted a subrogation lien for medical expenses. The Supreme Court denied the lien, citing New York's anti-subrogation statute, General Obligations Law § 5-335. On appeal, the Appellate Division reversed, holding that the self-funded plan was governed by ERISA, which preempts the state anti-subrogation statute. Consequently, the subrogation lien was deemed enforceable against the settlement proceeds.

ERISA PreemptionSubrogation LienSelf-Funded Employee BenefitsPersonal Injury SettlementAnti-Subrogation StatuteAppellate DivisionInfant CompromiseAutomobile AccidentReimbursement ClaimsNew York Law
References
5
Case No. MISSING
Regular Panel Decision
Oct 23, 2013

Scholastic Inc. v. Pace Plumbing Corp.

Plaintiff, Scholastic Inc., suffered over $1.5 million in water damage in 2006 due to a broken Victaulic coupling in its Manhattan building, installed by defendant Pace Plumbing Corp. Scholastic's insurer, subrogated to its rights, sued Pace in 2008 for negligence and breach of contract. Pace's answer included a single paragraph listing 16 boilerplate affirmative defenses, including the statute of limitations, without separate numbering. The motion court deemed the statute of limitations defense inadequately pleaded but granted summary judgment to Pace on the merits. The appellate court reversed, holding that Pace's statute of limitations defense was indeed inadequately pleaded and prejudiced Scholastic by hindering targeted discovery. The case was remanded to allow Pace to amend its pleading and Scholastic to conduct discovery on the statute of limitations issue, specifically the completion date of Pace's work. The court also raised questions regarding the universal applicability of prior precedent on pleading particularity compared to Official Form 17.

Pleading RequirementsAffirmative DefenseStatute of LimitationsCPLRPrejudiceDiscoverySummary JudgmentRemandAppellate ReviewBoilerplate Defenses
References
26
Case No. MISSING
Regular Panel Decision

PIERCE & WEISS, LLP. v. Subrogation Partners LLC

Plaintiff Pierce & Weiss, LLP sued Subrogation Partners LLC, AON Recovery, Inc., and AON Re, Inc. for unpaid legal fees related to a breach of an attorney-client retainer contract. The central issue revolved around a motion for admission pro hac vice filed by attorneys Brian Letofsky and Daniel Watkins, seeking to represent Pierce & Weiss. Defendants opposed, arguing a conflict of interest due to Mr. Letofsky's prior and ongoing representation of Subrogation and AON in other matters. The Court determined that AON was a current client and Subrogation a former client of Mr. Letofsky, thus creating a conflict of interest due to divided loyalties. Consequently, the Court denied the motions for admission pro hac vice for both Mr. Letofsky and his partner, Mr. Watkins, disqualifying their firm, Watkins & Letofsky, from representing the plaintiff.

Attorney DisqualificationConflict of InterestPro Hac Vice MotionAttorney-Client RelationshipLegal EthicsLaw Firm RepresentationFee DisputeSubrogationRetainer AgreementProfessional Conduct Rules
References
32
Case No. MISSING
Regular Panel Decision

State Farm Mutual Automobile Insurance Co. v. Pender

This case involves a subrogation action initiated by an unnamed plaintiff (subrogee) to recover $15,200 in additional personal injury protection (APIP) benefits paid to its subrogor, Darci Plumbing Co., Inc., for an employee, Kareem Atkins. The defendants moved to dismiss the complaint based on documentary evidence, collateral estoppel, and res judicata, arguing that a prior Workers’ Compensation Board decision from November 24, 2008, which awarded Atkins basic economic loss benefits, was determinative. The plaintiff cross-moved for sanctions. The court found that APIP benefits, defined by 11 NYCRR 65-1.3, are distinct from statutory basic economic loss benefits and that an insured's subrogation rights for APIP are equitable, existing under common law. Therefore, the workers' compensation award was not res judicata, and the plaintiff was not precluded from asserting its subrogation rights for amounts paid in addition to the statutory basic economic loss. Consequently, the defendants' motion to dismiss was denied, and the plaintiff's cross-motion for sanctions was also denied.

SubrogationAPIP BenefitsPersonal Injury ProtectionWorkers' CompensationCollateral EstoppelRes JudicataMotion to DismissSanctionsNo-Fault LawInsurance Law
References
1
Case No. MISSING
Regular Panel Decision
Jun 29, 1992

Mark v. Eshkar

This case involves a plaintiff, owner of Manhattan premises, and defendants Eshkar and Jules Schapiro, whose adjacent building shared a party wall. Following rehabilitation work on Schapiro's building in 1984, minor damage to the party wall occurred. In 1989, more significant structural cracks appeared, attributed to allegedly faulty foundation work supervised by Eshkar. The trial court dismissed the plaintiff's negligence claim against Eshkar, deeming it barred by a three-year statute of limitations, which it held commenced in 1985 upon the issuance of the certificate of occupancy. The appellate court reversed this decision, ruling that the cause of action accrued in 1989 when the structural cracks became visible, aligning with the principle that the statute of limitations for damages resulting from loss of lateral support begins when such damages are sustained and become apparent.

Statute of LimitationsNegligenceReal PropertyParty WallConstruction DefectsAccrual of Cause of ActionLatent DefectsStructural DamageNew York LawAppellate Procedure
References
2
Case No. MISSING
Regular Panel Decision

Davis v. Isaacson, Robustelli, Fox, Fine, Greco & Fogelgaren, P. C.

Plaintiff Karl Davis sued attorney Bernard A. Kuttner for legal malpractice, alleging failure to pursue certain claims after a workplace injury in 1989. Kuttner moved to dismiss the lawsuit, arguing that the action was barred by the recently amended CPLR 214 (6), which shortened the statute of limitations for non-medical malpractice to three years and would have rendered Davis's claims, which accrued in 1991, time-barred by his 1997 filing against Kuttner. The court denied Kuttner's motion, ruling that applying the amended CPLR 214 (6) in this instance would unconstitutionally deprive the plaintiff of a reasonable time to bring suit, as the claims would have been immediately barred upon the amendment's effective date without legislative provision for a grace period. Consequently, the court held that the six-year statute of limitations previously in force applied, deeming Davis's claims timely.

Legal MalpracticeStatute of LimitationsCPLR 214 (6) AmendmentConstitutional LawDue ProcessRetroactivity of LawWorkers' Compensation ClaimNegligenceWorkplace InjuryMotion to Dismiss
References
27
Case No. MISSING
Regular Panel Decision

Ashmead v. Groper

The plaintiff appealed an order from the Supreme Court (Sullivan County), which dismissed their legal malpractice action against an attorney as barred by the Statute of Limitations. The plaintiff had initially retained the defendant attorney in 1981 for a workers' compensation claim, which closed in 1984 after an award for partial disability. In 1995, the plaintiff sued the attorney for negligence regarding the calculation of the average weekly wage. The Appellate Division affirmed the dismissal, rejecting the plaintiff's argument of continuous representation, stating that a professional's failure to act does not constitute such. The court found that the Statute of Limitations expired, at the latest, six years after the workers' compensation case closed in May 1984.

Legal MalpracticeStatute of LimitationsContinuous Representation DoctrineWorkers' CompensationAttorney NegligenceAppellate ReviewDismissalAffirmationNew York LawCivil Procedure
References
8
Case No. MISSING
Regular Panel Decision
May 18, 1994

Claim of Boshart v. St. Francis Hospital

The claimant, a hospital employee, stopped working due to an aggravated preexisting back condition and filed a claim for workers' compensation benefits. Her claim was initially denied, but a Workers’ Compensation Law Judge found prima facie medical evidence for an occupational back condition. Upon appeal, the Workers' Compensation Board rejected the employer's contention that the claim was barred by Workers’ Compensation Law § 28, ruling the employer had waived this defense. The employer appealed this decision. The court affirmed the Board's decision, concluding that the employer failed to raise the Statute of Limitations defense at the first hearing where all parties were present, thereby waiving the right to assert it.

Workers' CompensationStatute of LimitationsWaiverOccupational DiseaseBack InjuryEmployer LiabilityAppellate ReviewProcedural DefenseInsurance ClaimBoard Decision
References
2
Case No. MISSING
Regular Panel Decision
Jul 02, 2002

Mason v. American Tobacco Co.

Plaintiffs brought a class action under the Medicare as Secondary Payer (MSP) statute, seeking certification for a class of individuals who received or are receiving health care services for tobacco-related illnesses, paid for by Medicare. Defendants opposed certification and moved to dismiss. The court denied class certification and dismissed the case, finding that the plaintiffs' interpretation of the ambiguous MSP statute was inappropriate. The court ruled that the statute does not support a qui tam-type individual action masquerading as a class action, and defendants, as tortfeasors, do not qualify as "self-insured plans" under the statute without specific agreements or funds. The decision emphasized that the legislative history does not indicate a Congressional design to apply the MSP statute broadly to general tortfeasors.

Medicare Secondary Payer ActClass ActionStatutory InterpretationQui Tam ActionSelf-Insured PlanTobacco LitigationHealthcare LawFederal Rules of Civil Procedure Rule 23Motion to DismissClass Certification Denial
References
21
Case No. ADJ2398835 (LAO 0799123)
Regular
Mar 26, 2010

LETICIA FERNANDEZ vs. MOUNT ST. MARY'S COLLEGE, CONVERIUM INSURANCE COMPANY/SRS, CALIFORNIA INSURANCE GUARANTEE ASSOCIATION, SEDGWICK, INC., LEGION INSURANCE COMPANY, VILLANOVA INSURANCE COMPANY

Converium Insurance Company sought reconsideration of a decision denying its claim for reimbursement from the California Insurance Guarantee Association (CIGA). Converium had paid workers' compensation benefits to Leticia Fernandez, but later argued these payments were made in error due to applicant's denial of a specific injury. The Arbitrator recommended denying reconsideration, finding that CIGA statutes, particularly Insurance Code Sections 1063.1(c)(5) and (9), prohibit reimbursement to solvent insurance carriers for claims that are not "covered claims" or are made by assignees or subrogated parties. The Workers' Compensation Appeals Board adopted the Arbitrator's report, denying Converium's petition for reconsideration.

California Insurance Guarantee AssociationCIGAConverium Insurance CompanySRSLegion Insurance CompanyVillanova Insurance Companyliquidationreconsiderationarbitrator's reportspecific injury
References
9
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