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

Case No. 535866
Regular Panel Decision
Jun 01, 2023

In the Matter of the Claim of Eleucadio Gallardo

Claimant Eleucadio Gallardo appealed a Workers' Compensation Board decision that denied his application for review due to non-compliance with 12 NYCRR 300.13(b). Gallardo sustained right leg injuries in September 2020 and filed a claim, with Charles J Kling Enterprises LLC and its carrier accepting liability as the employer. After a WCLJ established the claim and awarded benefits, Gallardo sought Board review, arguing Kling Enterprises was incorrectly named and submitting new evidence. The Board denied review, citing Gallardo's failure to object during the hearing and non-compliance with submission requirements for new evidence, specifically the lack of a sworn affidavit. The Appellate Division affirmed the Board's decision, finding no abuse of discretion as Gallardo failed to interpose an objection to the WCLJ's ruling and did not provide the required sworn affidavit for additional evidence.

Workers' Compensation Board ReviewAdministrative AppealFailure to ObjectNew Evidence Submission12 NYCRR 300.13Procedural ComplianceAppellate Division AffirmationEmployer IdentificationCarrier LiabilityWCLJ Decision
References
6
Case No. ADJ8 453844
Regular
Jun 15, 2016

ISOBETH CABRERA vs. LABOR READY, ESIS

This case involves a lien claimant seeking reconsideration of a dismissed lien. The lien was dismissed because the claimant failed to appear at a lien conference and subsequently file a properly verified objection detailing the excusable neglect. While the Board granted reconsideration, it intends to affirm the dismissal unless the claimant provides a sworn affidavit from a person with personal knowledge explaining the circumstances of the failure to appear. This affidavit must sufficiently detail the mistake, inadvertence, surprise, or excusable neglect.

Workers' Compensation Appeals BoardLien claimantPetition for ReconsiderationOrder Dismissing LienNotice of Intention to Dismiss Lienverified objectionCode of Civil Procedure section 473Fox v. Workers' Comp. Appeals Bd.Beverly Hills Multispecialty Group Inc. v. Workers' Comp. Appeals Bd.failure to appear
References
6
Case No. 2021 NY Slip Op 05286 [198 AD3d 410]
Regular Panel Decision
Oct 05, 2021

Buffington v. Catholic Sch. Region of Northwest & Southwest Bronx

The Supreme Court, Bronx County, denied defendants' motion for summary judgment to dismiss the complaint. Defendants appealed, arguing the plaintiff's sole remedy was workers' compensation benefits because they were plaintiff's employer or an alter ego. The Appellate Division, First Department, agreed that the Supreme Court erred in its assessment of the affidavits' form, finding them sufficiently sworn. However, the Appellate Division affirmed the denial of summary judgment, concluding that the defendants failed to prima facie establish their alter ego/Workers' Compensation Law exclusivity defense, as the affidavits lacked personal knowledge and other admissible evidence did not prove the identity of the employer or control over operations.

Alter ego defenseSummary judgmentWorkers' compensation exclusivityAffidavits admissibilityBusiness records foundationPersonal knowledge requirementEmployer-employee relationshipAppellate reviewMotion to dismiss
References
5
Case No. MISSING
Regular Panel Decision

McGinn v. Morrin

This order addresses the defendants' motion to vacate and set aside the service of various legal documents, including an order to show cause, affidavit, summons, and verified complaint. The court unanimously affirmed the denial of the defendants' motion. The decision included an award of twenty dollars in costs and disbursements. Defendants were also granted leave to answer within twenty days after the service of the order, contingent upon the payment of the aforementioned costs.

Motion to VacateService of ProcessOrder to Show CauseVerified ComplaintCosts and DisbursementsAffirmation of OrderLeave to Answer
References
2
Case No. ADJ2005173
Regular
Mar 22, 2010

RUFUS TANKSLEY vs. CITY OF SANTA ANA

This case involves an applicant's petition to remove the Workers' Compensation Judge (WCJ) due to alleged bias against the applicant's attorneys. The petition was denied because it failed to meet the procedural requirements of an affidavit or declaration supporting the disqualification. Furthermore, the petition was untimely as it was filed after the applicant had already been sworn and testified at trial. Therefore, the Workers' Compensation Appeals Board (WCAB) denied the petition for removal.

Petition for RemovalWorkers' Compensation JudgeDisqualificationLabor Code section 5311WCAB Rule 10452AffidavitDeclaration Under Penalty of PerjurySwearing of WitnessUntimely PetitionReconsideration
References
0
Case No. ADJ10333468
Regular
Nov 05, 2018

RHONDA DUNBAR HOWARD vs. VALLEY BULK TRANSPORT, NATIONAL INTERSTATE INSURANCE

The Workers' Compensation Appeals Board dismissed the defendant's petition to disqualify the judge. The petition was dismissed because it was untimely, filed after the first witness was sworn, and lacked a required supporting affidavit detailing specific grounds for disqualification. Furthermore, the Board found that the defendant's allegations of prejudice were based on subjective perception and did not meet the legal standard for disqualification, even on the merits. Therefore, the judge's petition to disqualify was denied.

Workers' Compensation Appeals BoardPetition for DisqualificationWCJ disqualificationLabor Code 132aAppeals Board Rule 10452untimely petitionprejudicejudicial biasCode of Civil Procedure section 641affidavit
References
11
Case No. MISSING
Regular Panel Decision

Panio v. Sunderland

This case concerns appeals related to the validity of absentee and affidavit ballots from the November 2, 2004 general election for the 35th State Senatorial District, contested between Republican candidate Nicholas Spano and Democratic candidate Andrea Stewart-Cousins. The court modified the Appellate Division's order, ruling that 163 affidavit ballots cast in the correct polling site but wrong election district, 45 absentee ballots by poll workers, and 20 affidavit ballots with missing election district information, all due to ministerial errors by the Board of Elections, must be counted. Conversely, 457 affidavit ballots cast at the wrong polling place and three affidavit ballots where votes were already recorded for those voters were properly excluded. The decision emphasizes balancing statutory duties with voter rights, ensuring that ministerial errors do not disenfranchise eligible voters.

election lawballot validityaffidavit ballotsabsentee ballotsministerial errorvoter disenfranchisementpolling siteelection districtNew York State Senateelection dispute
References
8
Case No. ADJ8453844
Regular
Aug 05, 2016

ISOBETH CABRERA vs. LABOR READY, ESIS

The Workers' Compensation Appeals Board affirmed an order dismissing a lien claim filed by Orthopedic Sports and Spine Medical Group. The lien claimant failed to appear at a lien conference and did not file a proper verified objection, which is required to seek relief from dismissal under Code of Civil Procedure section 473. The Board found the lien claimant's objection lacked the necessary sworn affidavit detailing excusable neglect. Therefore, the dismissal of the lien was upheld.

Workers' Compensation Appeals BoardReconsiderationLien ClaimantOrder Dismissing LienPetition for ReconsiderationNotice of Intention to Dismiss LienVerified ObjectionExcusable NeglectCode of Civil Procedure Section 473WCJ
References
0
Case No. MISSING
Regular Panel Decision

People v. Buckman

The defendant moved for suppression of physical evidence, suppression of statements, and inspection of Grand Jury minutes. The court criticized the District Attorney's affidavit for lacking factual support. The motion for a suppression hearing concerning physical evidence was granted. However, the court denied the motion for a Huntley hearing due to the defendant's failure to provide sworn factual allegations. The request to inspect Grand Jury minutes was also denied, as the motion papers did not meet the statutory requirements for showing reasonable cause.

Criminal Procedure LawPenal LawSuppression HearingGrand Jury MinutesHuntley HearingPhysical EvidenceStatementsIndictmentDangerous DrugAffidavit
References
13
Case No. ADJ7764690
Regular
May 03, 2017

Melissa Tucker vs. Obagi Skin Health Institute, Hartford Sacramento

The Workers' Compensation Appeals Board (WCAB) granted the lien claimant's petition for reconsideration regarding the dismissal of its lien claim. The dismissal was based on the lien representative's failure to appear at a lien conference. The WCAB will affirm the dismissal unless the lien claimant provides a sworn declaration from a person with personal knowledge explaining the excusable neglect, such as a computer error, that caused the representative's absence. This affidavit must demonstrate facts sufficient to establish mistake, inadvertence, surprise, or excusable neglect under Code of Civil Procedure section 473.

Lien claimantReconsiderationExcusable neglectCode of Civil Procedure section 473Fox v. Workers' Comp. Appeals Bd.Sworn declarationPersonal knowledgeComputer errorWCJ dismissalNotice of Intention
References
11
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