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

Case No. 2023 NY Slip Op 00983 [213 AD3d 905]
Regular Panel Decision
Feb 22, 2023

Castano v. Algonquin Gas Transmission, LLC

Nick Castano, the plaintiff, appealed an order from the Supreme Court, Dutchess County, in his personal injury action against Algonquin Gas Transmission, LLC, and Henkels & McCoy, Inc., alleging Labor Law violations. Castano sustained injuries while working on a pipeline project when a heavy pipe allegedly struck his leg. The Supreme Court had previously granted the defendants' motion to dismiss the Labor Law § 240 (1) claim and denied Castano's cross-motions for summary judgment and to amend his bill of particulars. The Appellate Division modified the order, denying the defendants' motion to dismiss the Labor Law § 240 (1) claim and granting Castano leave to amend his bill of particulars. However, the Appellate Division affirmed the denial of Castano's cross-motion for summary judgment on the issue of liability, noting the existence of triable issues of fact regarding proximate causation and the adequacy of safety devices.

Personal InjuryLabor LawSummary JudgmentAppellate ReviewConstruction AccidentFalling ObjectElevation-Related RiskPipeline ProjectIndustrial CodePleading Amendment
References
17
Case No. MISSING
Regular Panel Decision

Boyette v. Algonquin Gas Transmission Co.

Plaintiff Clayton Larry Boyette, joined by his wife Delores, sued Algonquin Gas Transmission Co. for negligence and New York Labor Law violations after a fall on Algonquin's property. Algonquin impleaded its contractor, Dick Enterprises, Inc., asserting contractual duties of defense, indemnity, and insurance. Algonquin moved for summary judgment, seeking no liability to Boyette and contractual liability from Dick. The court granted summary judgment for Algonquin and Dick on the Labor Law § 241(6) claim, finding no violation of the industrial code's specific tripping hazard rules. However, the motion was denied regarding common law negligence and Labor Law § 200 claims, due to unresolved factual disputes about Algonquin's supervisory control. The court also denied summary judgment on Dick's indemnification duty, pending a negligence determination, but granted it on Dick's obligation to procure insurance, concluding that this duty had been fulfilled.

Summary JudgmentNegligenceNew York Labor Law § 200New York Labor Law § 241(6)IndemnificationInsurance ObligationConstruction Site AccidentContract DisputeThird-Party LiabilitySafe Place to Work
References
27
Case No. ADJ13173690
Regular
Feb 07, 2023

CHRISTOPHE LELONG vs. BEVERLY HILLS POLICE DEPARTMENT, CORVEL

This case involves a police officer diagnosed with a sinus and respiratory infection caused by *Citrobacter koseri*, a bacteria transmissible through blood. The applicant sustained symptoms during his employment, triggering the presumption of industrial causation under Labor Code section 3212.8. The defendant challenged the presumption, arguing the bacteria's transmission was uncertain and not solely blood-borne. However, the Board affirmed the initial award, finding the defendant failed to meet its burden of proof to rebut the presumption, as the bacteria is capable of being carried or transmitted by blood.

Labor Code 3212.8blood-borne infectious diseasepresumption of industrial causationCitrobacter koseripolice officeroccupational exposuresinus infectionrespiratory systemindustrial injuryrebuttal of presumption
References
10
Case No. MISSING
Regular Panel Decision

Claim of Paider v. Park East Movers

An employer and its insurance carrier appealed a decision awarding a truck driver disability for pulmonary tuberculosis, found to be an occupational disease due to exposure to a co-worker in the truck cab. The court determined this was not an occupational hazard specific to truck driving, unlike situations where disease transmission occurs via instruments inherent to the job. Citing precedents like Harman and Buckley, the court reiterated that a co-worker, not the occupation itself, caused the disease. The decision differentiated the case from Mason and Hovancik, which involved transmission through job-specific tools like a telephone mouthpiece or a pipette. Consequently, the court reversed the board's decision and dismissed the claim, finding no "special hazard" attributable to a truck cab.

Occupational DiseaseTuberculosisTruck DriverCo-worker ExposureHazardInstrument of TransmissionWorkers' CompensationAppealDisease TransmissionEmployment
References
5
Case No. MISSING
Regular Panel Decision

Jane W. v. John W.

The court addressed a novel application regarding a defendant father with AIDS seeking pendente lite visitation with his 1.5-year-old daughter. The plaintiff wife was concerned about the father's caregiving ability, rather than AIDS transmission, as she and the child tested negative. Expert medical testimony from Dr. Jeffrey Vieira clarified AIDS transmission, affirmed the father's responsible nature, and detailed necessary precautions. The court ruled that the father's AIDS diagnosis should not impede visitation, particularly given his medical background. Finding no exceptional circumstances, the court granted unsupervised visitation, starting with daytime visits in September and expanding to overnight visits in October, provided the father adheres to prescribed medical precautions.

Child VisitationPendente Lite ApplicationAIDS DiagnosisUnsupervised VisitationBest Interest of the ChildExceptional CircumstancesParental RightsMedical Expert TestimonyInfectious DiseaseHealthcare Worker
References
7
Case No. MISSING
Regular Panel Decision
Nov 22, 1993

Cleary, Gottlieb, Steen & Hamilton v. Legal Services Staff Ass'n

Plaintiff Cleary, Gottlieb, Steen & Hamilton, a law firm, sought a preliminary injunction against the Legal Services Staff Association (Local 2320), its president Scott M. Sommer, and Barbara Small, arising from a bitter labor dispute between the union and Legal Services for New York City (LSNY). The conflict escalated when union members engaged in disruptive activities, including a 1991 sit-in at Cleary Gottlieb's offices and, more recently, jamming the firm's fax machines with over 400 transmissions on November 17, 1993. The union also planned a disruptive 'Breakfast at Cleary Gottlieb' event. The court found that the defendants' conduct, including trespassing and disrupting business operations, was not protected by constitutional or labor rights. Consequently, the court granted the preliminary injunction, prohibiting the defendants from sending more than ten fax transmissions per day (each not exceeding five pages) to Cleary Gottlieb, and from trespassing on or physically occupying the firm's premises.

Preliminary InjunctionLabor DisputeFax Machine MisuseTrespassingUnion ActivityHarassmentInjunctive ReliefDisruptive ConductEmployer-Employee RelationsFederal Court
References
1
Case No. MISSING
Regular Panel Decision
Nov 27, 2002

Fredenburg v. Emerson Power Transmission

The claimant, who worked for an employer since 1990, was exposed to chemicals including a black powdery lubricant known as molykote. She experienced respiratory problems, specifically asthma, which became significantly disabling from September 1999, prompting her to stop working in February 2000 and file a claim for workers' compensation benefits in December 1999. The Workers’ Compensation Board modified an earlier decision, ruling that the claimant established an occupational disease due to the aggravation of her preexisting asthmatic condition. The employer appealed, contending that the condition was active since 1993 and that molykote levels were within OSHA guidelines. However, the appellate court affirmed the Board's decision, finding that the asthma was dormant and non-disabling prior to September 1999, and her exposure to molykote at work caused it to become disabling. The court also deemed the claim timely, as September 7, 1999, was identified as the date of disablement when claimant sought treatment and learned of the connection to molykote.

Occupational diseaseasthmachemical exposuremolykotepreexisting conditionaggravationworkers' compensationdisablementtimelinessOSHA guidelines
References
9
Case No. MISSING
Regular Panel Decision

Schmoeger v. Algonquin Gas Transmission Co.

Plaintiffs initiated a lawsuit to contest the alleged improper expansion and operation of a gas compressor facility in Stony Point, New York, claiming it caused excessive noise, vibration, and damage to their adjacent properties. The defendant sought summary judgment, asserting that the plaintiffs were legally barred from challenging the Federal Energy Regulatory Commission (FERC) certificate that authorized the facility's expansion. The court concurred that collateral attacks on the FERC-approved certificate and its implementation for damages were preempted by federal regulatory decisions. While acknowledging the potential for state law claims concerning improper operations beyond the scope of federal approval, the court ultimately dismissed the plaintiffs' complaint. This dismissal was due to the plaintiffs' failure to present concrete evidence of alleged wrongs, relying instead on mere conclusory allegations.

PreemptionSummary JudgmentFederal Energy Regulatory CommissionGas Compressor FacilityNuisanceCollateral AttackRegulatory StructureState Law ClaimsProperty DamageEvidentiary Standard
References
9
Case No. MISSING
Regular Panel Decision
Jun 07, 2001

Claim of Hosmer v. Emerson Power Transmission

In 1972, the claimant began working for an employer, assembling industrial chains coated with molykote, a black powdery lubricant. By 1998, she developed respiratory problems, leading to a diagnosis of severe sinusitis and airway irritation, and stopped working in June 1999. She filed for workers' compensation, initially established for accident, notice, and causal relationship, then modified by the Workers' Compensation Board for occupational disease involving sinusitis and/or airway irritation superimposed on a preexisting allergic sensitivity due to molykote exposure. The employer appealed, arguing a lack of scientific basis for causal connection. The court affirmed the Board's decision, relying on medical testimony that molykote exposure was a significant factor in her symptoms, and that it aggravated a previously dormant allergic condition.

Occupational DiseaseSinusitisAirway IrritationMolykote ExposureCausal RelationshipPreexisting ConditionWorkers' Compensation BenefitsMedical Opinion ConflictAppellate ReviewEmployer Appeal
References
6
Case No. MISSING
Regular Panel Decision

Covey v. Iroquois Gas Transmission System

Plaintiff was injured during pipeline construction when a handrail on a backhoe detached, causing him to fall approximately 20 feet into an adjacent ditch. He initiated an action against the defendants, owners of the pipeline, alleging violations of Labor Law §§ 200, 240 (1), and 241 (6), as well as negligence. The Supreme Court granted plaintiff's motion for partial summary judgment on Labor Law § 240 (1) liability and denied the defendants’ cross-motion to dismiss the complaint. The appellate court affirmed the Supreme Court's order, concluding that Labor Law § 240 (1) was applicable because the plaintiff’s maintenance work was an integral part of construction and exposed him to a significant elevation-related hazard. Dissenting opinions argued that the plaintiff's activity constituted routine maintenance not covered by the statute and that the fall did not meet the definition of an elevation-related hazard.

Labor Law § 240 (1)Construction Site InjuryElevation-Related HazardRoutine MaintenancePipeline ConstructionSummary JudgmentAppellate ReviewBackhoe AccidentFalling WorkerIntegral Part of Construction
References
37
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