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

Case No. 2015 NY Slip Op 01380 [125 AD3d 480]
Regular Panel Decision
Feb 17, 2015

DaSilva v. Haks Engineers, Architects & Land Surveyors

Plaintiff Paulo DaSilva, a construction worker, was injured after falling from a scaffold while working on the Croton Falls Dam project. He brought an action alleging violations of Labor Law §§ 200, 240 (1), and 241 (6) against Haks Engineers, Architects and Land Surveyors, P.C., Earth Tech Northeast, Inc., and Haks Et Joint Venture, who were construction managers for the project. The Supreme Court, New York County, granted defendants' motions for summary judgment, finding that under their construction management services contract, defendants did not have supervisory control over the construction methods and were not statutory agents for liability under the Labor Law sections. The Appellate Division, First Department, unanimously affirmed this decision, stating that general supervisory duties were insufficient for liability and that plaintiff failed to present evidentiary support to contradict the contract terms or suggest that further discovery would yield relevant evidence.

Construction AccidentScaffold FallSummary JudgmentSupervisory ControlStatutory AgentConstruction Manager LiabilityAppellate DivisionFirst DepartmentLabor LawWorkplace Safety
References
7
Case No. MISSING
Regular Panel Decision
Dec 16, 2015

Glogowski v. County of Orleans

A land surveyor's septic system design for a farmhouse housing migrant workers was denied by Orleans County, which deemed the building commercial and required an engineer's design. Petitioner initiated a CPLR article 78 proceeding, which the Supreme Court dismissed. The appellate court reversed, finding the County's interpretation of Education Law § 7208 (n) — concerning a land surveyor's scope of practice for "minor nature" sanitary facilities — to be flawed. The court clarified that the "commercial buildings" exclusion applied to the design of a building, not a septic system, and reinstated the petition, annulling the County's determination. The case was remitted for further proceedings.

Land SurveyorSeptic System DesignProfessional LicenseRegulatory InterpretationArticle 78 ProceedingEducation LawCommercial BuildingResidential UseMigrant Farm WorkersOrleans County
References
3
Case No. ADJ6736602 (MF); ADJ6736601; ADJ6736597; ADJ8013380
Regular
Sep 06, 2012

SABRINA TAANING vs. EAST BAY MUNICIPALITY UTILITY DISTRICT, Permissibly Self-Insured; Adjusted By ATHENS ADMINISTRATORS

The Workers' Compensation Appeals Board (WCAB) denied the applicant's petition for reconsideration. The applicant, a surveyor, claimed she contracted Lyme disease from tick bites sustained during employment with East Bay Municipal Utility District. The WCAB found that the applicant did not sustain injury arising out of and in the course of employment. The WCAB specifically adopted the reasoning of the Workers' Compensation Administrative Law Judge (WCJ), which found the medical report of Dr. Thomas Allems to be substantial evidence supporting this conclusion. The WCAB also admonished the applicant's attorney for failing to comply with rules requiring fair and accurate representation of the evidence in the petition.

Lyme diseaseAOE/COEPetition for ReconsiderationWCJ reportsubstantial evidencetick bitesBorrelia burgdorferiWestern blotPCR testingdiagnostic criteria
References
0
Case No. MISSING
Regular Panel Decision
Apr 03, 1998

Weber v. Northberry Construction

Claimant, a surveyor, sustained two work-related knee and back injuries in 1986. The Workers’ Compensation Board ruled he had a permanent partial disability and the carrier made a $5,000 overpayment. Claimant appealed, alleging prejudice from inability to cross-examine a private investigator who testified about videotaped surveillance but was unavailable for further testimony. The court found no undue prejudice given the substantial independent medical evidence from nine health care professionals, which the Board primarily relied upon. The Board's finding of permanent partial disability was affirmed, with the court noting that resolving conflicting medical testimony falls within the Board's purview if based on substantial evidence.

Permanent Partial DisabilityWork-Related InjuryMedical TestimonyOverpaymentCross-ExaminationPrivate InvestigatorVideotape EvidenceAppellate ReviewSubstantial EvidenceWorkers' Compensation Board
References
2
Case No. CA 16-00579
Regular Panel Decision
Mar 24, 2017

GLOGOWSKI, JAMES K. v. COUNTY OF ORLEANS

Petitioner, a licensed land surveyor, initiated a CPLR article 78 proceeding against the County of Orleans, its Department of Health, and two individuals, seeking to compel approval of his septic system design for a farmhouse intended for migrant farm workers. The County denied the design, classifying the farmhouse as commercial and requiring a professional engineer's input. The Supreme Court dismissed the petition. The Appellate Division reversed, finding the County's interpretation of Education Law § 7208 (n) flawed. The court clarified that the design was "of a minor nature" for an individual lot, not a commercial building, and that the County erred in disqualifying the petitioner. The judgment was reversed, the petition reinstated, the County's determination annulled, and the case remitted for further proceedings.

Land SurveyorProfessional LicenseSeptic SystemDesign ApprovalEducation LawCPLR Article 78Statutory InterpretationAdministrative LawCounty Department of HealthFarmhouse
References
3
Case No. MISSING
Regular Panel Decision
Jun 02, 2016

Schnapp v. Miller's Launch, Inc.

In this dissenting opinion, the plaintiff, a surveyor for Weeks Marine, was injured while attempting to board a chartered boat by jumping from a four-foot bulkhead instead of utilizing available safety equipment. The negligence claim falls under the Longshore and Harbor Workers’ Compensation Act, focusing on the defendant's 'turnover duty' and 'duty to intervene.' While the majority reversed summary judgment in favor of the defendant, the dissenting judge argues that the hazard was open and obvious, and the plaintiff had alternative safe boarding methods, thereby absolving the defendant of its turnover duty. Furthermore, the dissent asserts that the boat's captain lacked actual knowledge of the plaintiff's unsafe boarding method, thus no duty to intervene was breached. Therefore, the dissent concludes that the order granting summary judgment to the defendant should have been affirmed.

Longshore and Harbor Workers' Compensation ActTurnover dutyDuty to interveneShipowner negligenceOpen and obvious hazardSummary judgmentDissenting opinionVessel safetyDocking proceduresPersonal injury
References
14
Case No. MISSING
Regular Panel Decision
Oct 08, 2009

D'Elia v. City of New York

The plaintiff appealed an order from the Supreme Court, Queens County, concerning personal injuries sustained while working as a surveyor. The original order granted summary judgment to defendants on common-law negligence and Labor Law §§ 200 and 241(6) claims, and denied the plaintiff's cross-motion to amend his bill of particulars to include a violation of 12 NYCRR 23-1.23. The appellate court modified the order, granting the plaintiff's cross-motion for leave to amend his bill of particulars and denying summary judgment to defendants on the Labor Law § 241(6) claim. However, the court affirmed the dismissal of common-law negligence and Labor Law § 200 claims, finding defendants lacked supervisory authority over the plaintiff's work. The case involved an alleged fall on a steeply inclined slope made of loosely compacted dirt and rocks at a construction site.

Personal InjuryLabor LawSummary JudgmentBill of Particulars AmendmentConstruction Site AccidentWorkplace SafetyIndustrial Code ViolationNegligenceAppellate ReviewEarthen Slope Fall
References
13
Case No. 2008 NY Slip Op 51393(H)
Regular Panel Decision
Jun 30, 2008

Fassett v. Wegmans Food Markets, Inc.

Plaintiff, a heavy equipment operator employed by Fahs Rolston Paving Corporation, sustained an ankle injury after slipping on mud while exiting a backhoe at a Wegmans construction site. He filed a lawsuit against Wegmans Food Markets, Inc. (site owner) and Hunt Engineers, Architects and Land Surveyors, PC. (site monitor), alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). The Supreme Court initially granted summary judgment to Wegmans and partially to Hunt on the Labor Law § 241(6) claim. On cross appeals, the Appellate Division affirmed the dismissal of negligence and Labor Law § 200 claims against Wegmans, while establishing a triable issue of fact for Hunt on these same claims. Crucially, the court reversed the summary judgment concerning the Labor Law § 241(6) claim for both defendants, ruling that the backhoe's battery cover constituted a 'passageway' and accumulated mud a 'foreign substance' under 12 NYCRR 23-1.7 (d).

Construction site accidentSlip and fallLabor Law § 200Labor Law § 241 (6)Common-law negligenceSummary judgmentAppellate reviewDuty to provide safe workplaceForeign substancePassageway
References
31
Case No. 2016 NY Slip Op 02986 [138 AD3d 981]
Regular Panel Decision
Apr 20, 2016

Vitale v. Astoria Energy II, LLC

Daniel Vitale, a surveyor, was injured when his leg fell through an opening in a rebar grid at a construction site owned by Astoria Energy II, LLC, and managed by SNC-Lavalin Constructors, Inc. Vitale and his wife sued, alleging violations of Labor Law §§ 240(1), 241(6) (predicated on 12 NYCRR 23-1.7[b]), and 200. The Supreme Court, Queens County, denied the plaintiffs' motion for summary judgment and granted the defendants' cross-motion regarding Labor Law §§ 240(1) and 241(6), while denying the remainder of the cross-motion as untimely. The Appellate Division, Second Department, affirmed the Supreme Court's order. The court found that the rebar grid openings did not constitute an elevation-related hazard under Labor Law § 240(1) or hazardous openings under 12 NYCRR 23-1.7(b) because they were too small to permit a complete fall through. The denial of the remaining part of the defendants' cross-motion due to untimeliness was also upheld.

Personal InjuryConstruction AccidentLabor Law § 240(1)Labor Law § 241(6)12 NYCRR 23-1.7(b)Summary JudgmentAppellate ReviewHazardous OpeningsElevation-Related HazardTimeliness
References
10
Case No. MISSING
Regular Panel Decision

Wang v. New York State Department of Health

Donna L.N. Wang, a health care surveyor for the New York State Department of Health (DOH) and a U.S. Army Reserve member, sued DOH under USERRA and Military Law § 242, alleging a hostile work environment and discrimination upon returning from active military duty in 2008. She claimed increased caseload, undesirable assignments, limited vacation, and harassment, leading to a workers' compensation claim for anxiety, stress, and depression, which was upheld in 2010. DOH moved for partial summary judgment to dismiss several claims, arguing USERRA and Military Law § 242 did not cover hostile work environments or specific denied benefits. The court ruled that a hostile work environment claim is actionable under both USERRA and Military Law § 242 but dismissed Wang's claims regarding denied vacation and mileage reimbursement. The court denied dismissal of claims related to denied weekend 'on-call' income due to insufficient evidence from DOH, and claims regarding termination were dismissed as Wang remained employed. Wang's cross-motion for partial summary judgment based on collateral estoppel from the Workers' Compensation Board's decision was denied, as the legal standards and issues were not identical.

Employment DiscriminationMilitary Service DiscriminationHostile Work EnvironmentUSERRAMilitary Law § 242Summary Judgment MotionCollateral EstoppelWorkers' Compensation ClaimWorkplace HarassmentRetaliation
References
19
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