Articles Posted in Work Injury

With regard to plaintiff’s claim for abuse of process, FVA has demonstrated prima facie entitlement to summary judgment. In order to prevail on a cause of action a plaintiff must demonstrate that defendant: (1) caused the issuance of regularly issued process either criminal or civil; (2) with the intent to do harm without excuse or justification; (3) that the process was perverted to obtain a collateral advantage; and (4) that the process unlawfully interfered with plaintiff’s person or property. As discussed above, to the extent that plaintiff must prove all elements, a defendant obtains summary judgment if he negates the existence of any one of the elements.

FVA has demonstrated prima facie entitlement to summary judgment insofar as it has demonstrated that the process herein, namely, the reparation action, was not perverted in any way so as to obtain a collateral advantage. The witness establishes that the reparation action was commenced and prosecuted for a legitimate purpose, namely to recover money which GROWERS felt it was entitled to recover insofar as plaintiff had fraudulently obtained the same. To the extent that the purpose of the reparation action was to recover money and the same was GROWERS’s goal, it cannot be said that the process was perverted to obtain a collateral advantage. Based on the foregoing, FVA has demonstrated prima facie entitlement to summary judgment with regard to the abuse of process claim.

FVA has demonstrated prima facie entitlement to summary judgment with regard to plaintiff’s claim asserting fraud. It is worth noting that injury plaintiff never opposes this portion of FVA’s motion and as such, summary judgment is granted on default. Nevertheless it is well settled that a cause of action for fraud or misrepresentation requires proof that defendant misrepresented an existing fact, falsity, scienter, justifiable reliance by the plaintiff and damages. The Court finds that FVA’s evidence demonstrates an absence of misrepresentation, falsity or scienter. As such, FVA has established prima facie entitlement to summary judgment with regard to the cause of action for fraud.

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Defendants argue that the combination of the permissible WCL exclusion of Dole v. Dow with an otherwise enforceable post judgment assignment agreement creates an unenforceable exclusion to the Workers’ Compensation Law. This personal injury court disagrees.

Defendants’ liability in this case stems from a straightforward application of the Dole v. Dow exception to the Workers’ Compensation Law. The loan arrangement is not an extension of the Dole v. Dow exception. It does not create liability where none otherwise existed. The loan merely permits the enforceability of a judgment which is otherwise permissible under Dole v. Dow. The loan arrangement was expressly approved by the Court of Appeals in Feldman v. NYCHHC, supra.

The subsequent Court of Appeals decision in Gonzales v. Armac Industries, Ltd., 81 N.Y.2d 1, 595 N.Y.S.2d 360, 611 N.E.2d 261 (1993) does not command a different result. In Gonzales the court considered the enforceability of a pre-trial agreement in which a plaintiff agreed not to enforce any judgment against defendant in excess of 2% of the total damages awarded except to the extent loan arrangements were made to permit the plaintiff to collect any monies from the third party defendant. The court held that the pre-trial agreement, which limited defendants’ liability to 2%, was a release from liability within the meaning of sec. 15-108(c) of the General Obligations Law. The court went on to recognize that the agreement did violence to the Workers’ Compensation Law by indirectly allowing an employee to reach beyond an impecunious or insolvent defendant and into the employer’s deep pockets for recovery. Defendants argue that the Court’s decision in Gonzales means that in the context of the Workers’ Compensation Law, Feldman type assignment agreements will not be enforced.

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This motion raises the novel issue about whether a post judgment agreement assigning a defendant’s right to reimbursement from a third party defendant is void as against the public policy of the Workers’ Compensation Law (sometimes “WCL”) where the original plaintiff and the third party defendant are employee and employer. The material facts, although complicated, are not in dispute.

In 1981 TC was severely injured while he was performing demolition work as an employee of B.C. Enterprises, Inc. Mr. TG was precluded by the Workers’ Compensation Law from suing his employer for personal injury. Mr. TG did, however, bring a Supreme Court action in Bronx County against the City of New York, JLW and GKW (Bronx action). The Ws were the owners of the premises which were being demolished at the time of plaintiff’s injury.

Defendants each commenced third party actions against TG’s employer, B.C. Enterprises, Inc. There is no dispute that the third party actions were authorized pursuant to Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972).

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Section 205 (a) provides that: “If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if the plaintiff dies, and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new injury action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.”

As has been recognized, “The restorative provisions of CPLR 205 (a) reflect the idea that a diligent litigant who commenced a timely action but who failed on some generally technical ground, deserves an adjudication on the merits”. A reading of section 205 (a) makes plain that there are six requirements that must be satisfied by a plaintiff seeking resort to its restorative effects (collectively hereinafter the section 205 [a] elements). These are: (1) that the prior action was timely commenced; (2) that the prior action was terminated other than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action or a final judgment upon the merits; (3) that a new action was commenced within six months from the termination of the prior action; (4) that the new action and the prior action are based upon the same transaction or occurrence or series of transactions or occurrences; (5) that the new action would have been timely commenced at the time of commencement of the prior action; and (6) that service upon the defendant in the new action is effected within six months from the termination of the prior personal injury action.

In this case, the parties are in full agreement as to only two of those requirements, i.e., that the federal action and this action are based upon the same factual allegations and legal claims and that this new action was commenced within six months from the termination of the prior action. Thus, the court must analyze the facts involved at bar to determine whether plaintiffs have satisfied the other four elements of the section 205 (a) showing. As will be apparent, that analysis leads along separate paths for the non-answering and the answering federal defendants, albeit to a significant extent, it leads to the same terminus.

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A personal injury action was filed arising out of an accident which occurred at a construction site in New York. The action was filed against a general contractor and a concrete subcontractor performing concrete and masonry for and at the research and development building of a pharmaceutical company. The construction job, according to sources, included renovation of an existing building and construction of a new one along with roads, parking lots and walking areas around the buildings. A third subcontractor was also named defendant in the complaint. The third subcontractor was tasked to deliver concrete to the job site.

The plaintiff in the personal injuries action was a concrete laborer at the time of the incident. On that one unfortunate November day, the concrete laborer was assigned to pour sidewalk curbs and light pole basis in the parking lot when he was struck from behind by something he could not identify that made contact with the upper part of his back and knocked him off balance. He fell into a hole. The concrete laborer said there was no warning sign from the truck as it backed up. A co-worker later told him that he was struck by the chute from the cement truck.

The concrete laborer alleged negligence and violations of New York labor laws against the general contractor and the two subcontractors.

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This is a case being heard in the Second Department, Appellate Division, of the Supreme Court of the State of New York. The appellants in this case are appealing an order that was made in the Supreme Court of Kings County that granted a petition for approval of a personal injury settlement.

Court Discussion and Decision

The court has reviewed the matter at hand and finds that the Supreme Court of Kings County was correct when they approved the settlement of the petitioner’s personal injury action.

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This is a case being heard in the Supreme Court of Kings County. The plaintiffs, through a verified complaint, state that around the 26th of September, 2006, the plaintiff was severely injured when he was operating equipment on the premises of the first defendant of the case. The premise is owned by the second defendant in the case. The defendants are seeking an order granting them a summary judgment in the case that dismisses the action.

Plaintiff’s Case

The plaintiff’s have alleged three causes of action in their verified complaint. The first cause of action alleges that the injury that was sustained by the plaintiff was caused by the negligence of the defendant for failing to keep the machinery maintained. The final cause of action states that the wife of the plaintiff was deprived of the services, society, love, affection, and consortium of her husband as a result of the injury. The plaintiffs also allege that the defendants were put on written notice that the machinery in question was needed as evidence but failed to preserve the machinery. The plaintiffs state that they have not been allowed to inspect the machinery in any way as evidence to support their case.

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This matter deals with Nelida Capizzi as the claimant. The Southern District Reporters, Inc., et all is the respondents. The Workers Compensation Board is the appellant in the case. The case is being heard in the Court of Appeals of New York.

This is a workers’ compensation claim that presents the question of whether the claimant’s injury that resulted from a slip and fall in a bathtub at a hotel arouse from the course of her employment. The Workers’ Compensation Board determined that the accident, notice, and causal relationship have been established. The Appellate Division reversed on the ground that showering is a personal act and the injury of the claimant is non-compensable as a matter of the law. The Workers’ Compensation Board is appealing to this court.

Case Background

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