The 2023 Florida Statutes (including Special Session C)
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Compensability of injuries sustained by employee/victims of violent crime at work is a matter of great public importance. Further, when the majority of a single panel of judges deviates from statutory text and prior precedent of the court, thereby creating a new rule of law, full court review is not discretionary. See Fla. R. App. P. 9.331(a). "Compensation shall be payable irrespective of fault as a cause for the injury ...." § 440.10( 2), Fla. Stat. (2019). Workers' compensation covers accidental injuries, regardless of who is to blame. See Aguilera v. Inservices, Inc., 905 So.2d 84, 89 (Fla. 2005) ("Workers' compensation laws provide employees limited medical and wage loss benefits, without regard to fault, for losses resulting from accidental workplace injuries . . . ."). The purpose of Chapter 440, Florida Statutes, is to ensure the quick and efficient delivery of benefits to employees injured at work and to maintain the delicate balance struck by the Legislature in mandating that employers carry workers' compensation insurance coverage in exchange for certain immunities from civil liability. See §§ 440.10, 440.11, 440.015, Fla. Stat. We have jeopardized… Galati did not own the Red Lion. (Doc. # 114). Jeffco was Galati's subcontractor. (Id.). Foraker was Jeffco's employee. (Id.). Galati sublet the buffing of the isinglass to Jeffco. (Id.). Upon the jury finding the act of buffing the isinglass arose from a contract Galati had with the Red Lion, it provided the final fact necessary to determine whether Foraker was Galati's statutory employee. Fla. Stat. § 440.10(b); see also Miami Herald Publishing v. Ralph Hatch, 617 So.2d 380 (Fla. 1st DCA 1993); Delta Air Lines, Inc. v. Cunningham, 658 So.2d 556 (Fla. 3d DCA 1995); Rabon v. Inn of Lake City, 693 So.2d 1126 (Fla. 1st DCA 1997). The verdict and other factsestablish a statutory employeremployee relationship. Additionally, because Jeffco did not secure workers compensation coverage for Foraker (Doc. # 114 ¶ 18), Galati had the obligation. Fla. Stat. § 440.10(b).Galue does not dispute that a commercial lease is a contract to which section 440.10(1)(b) may apply. See, e.g., Gator Freightways, Inc., 550 So.2d at 1119 (stating that section 440.10 is not limited to construction contracts); Miami-Dade Cnty. v Acosta, 757 So.2d 539, 541 (Fla. 3d DCA 2000) (finding that Miami-Dade County had "contractual obligation" for section 440.10 purposes under commercial lease).Focusing on the fundamentals, workers' compensation is a "no-fault" system: "Compensation shall be payable irrespective of fault as a cause for the injury." § 440.10( 2), Fla. Stat. Contrary to the majority's fault-based reasoning, existing law on accidents supports affirmance in this crime case. This no-fault concept operates to make accidents compensable, since by definition an accident is something that just happens, perhaps with no explanation; and the task of the workers' comp system is to be blind to the cause of the accident and take care of the injured worker. See § 440.02(1), Fla. Stat. ("'Accident' means only an unexpected or unusual event or result that happens suddenly."); see also Aguilera v. Inservices, Inc., 905 So.2d 84, 89 (Fla. 2005) ("Workers' compensation laws provide employees limited medical and wage loss benefits, without regard to fault, for losses resulting from accidental workplace injuries in exchange for the employee relinquishing his or her right to seek common law recovery from the employer for those injuries.") (emphasis added). The majority opinion in effect rewrites sections 440.10 and 440.11, and jeopardizes employers… Under Florida's workers' compensation law, even if a traditional employeremployee relationship does not exist, a “statutory employer” may be liable for workers' compensation. Orama v. Dunmire, 552 So.2d 924, 925 (Fla. 1st DCA 1989) (citations omitted) (discussing Florida Statute section 440.10). The statutory employer provision of Florida Statute section 440.10( 1)(b), states in pertinent part that if a contractor “sublets” or delegates “any part or parts” of its contract work, then all the contractor's and subcontractor's employees are “deemed to be employed in one and the same business or establishment,” and the contractor is liable for the payment of workers' compensation to the subcontractor's employees. Fla. Stat. § 440.10( 1)(b). To constitute a statutory employer who is liable for the payment of workers' compensation, “there must be a contractual obligation on the part of the contractor, a portion of which he sublets to another.” Cork v. Gable, 340 So.2d 487, 489 (Fla. 2d DCA 1976). Notably, “where an entity assumes the legal status of a contractor, it becomes the ‘statutory employer' of the subcontractor's employees and is liable for the payment… has secured such payment. Fla. Stat. § 440.10(1)(b). “[B]ecause contract work must be sublet to form the basis for statutory employer immunity under Section 440.10(1)(b), the statute requires that the contractor
Under Florida law, employers are obligated to provide workers' compensation coverage for their actual and “statutory employees.” Endurance Am. Specialty Ins. Co. v. L. Pellinen Constr., Inc., No. 21-10256, 2021 WL 5264673, at *4 (11th Cir. Nov. 12, 2021) (citing Fla. Stat. § 440.10); Stephens, 749 F.3d at 1322. Florida Statutes § 440.02(15)(a) defines “employee” in part as “any person who receives remuneration from an employer for the performance of any work or service.” Florida's Workers'§ 440.10( 1)(b). "For the association to be a contractor (and thus [Bellorin's] statutory employer) under section 440.10, it must show that it has a contractual obligation to provide [valet] services to the unit owners," Smith v. Mariner's Bay Condo. Ass'n, Inc., 789 So. 2d 1228, 1229 (Fla. 3d DCA 2001), and that it "sublet[ ] any part or parts of [the] contract work to a subcontractor," § 440.10( 1)(b). See Mathis v. Sacred Heart Health Sys., Inc., 187 So. 3d 951, 952 (Fla. 1st DCA 2016) ; Miami Herald Publ'g. v. Hatch, 617 So. 2d 380, 382–84 (Fla. 1st DCA 1993). "To be considered a contractor under section 440.10, [the association's] ‘primary obligation in performing a job or providing a service must arise out of a contract.’ " Tampa Elec. Co., 327 So. 3d at 1284 (quoting Sotomayor v. Huntington Broward Assocs. L.P., 697 So. 2d 1006, 1007 (Fla. 4th DCA 1997) ). See Smith, 789 So. 2d at 1229 ("As a contractor, the association's primary obligation in providing security services to its residents must arise out of a contract."). "Furthermore, the ‘primary obligation’ refers to an obligation under the prime contract between the contractor and a… EISNAUGLE, J. Electric Boat Corporation appeals an order granting Sylvia Fallen's motion for summary judgment, and denying Electric Boat's dueling motion, on Electric Boat's affirmative defense of horizontal workers’ compensation immunity pursuant to section 440.10, Florida Statutes (2014). We have jurisdiction and reverse because the undisputed facts at summary judgment establish that Electric Boat was not grossly negligent as a matter of law and is therefore immune from liability under the exclusive remedy provision of Florida's workers’ compensation statute. See § 440.10(1)(e)(2), Fla. Stat. (2014). We do not reach the other issues raised on appeal.Neither estoppel nor the special hazard doctrine apply because Claimant did not establish their elements. See City of Dania Beach v. Zipoli , 204 So. 3d 52, 54 (Fla. 1st DCA 2016) (listing elements of equitable estoppel); Zeeuw v. BFI Waste Sys. of N. Am., Inc. , 997 So. 2d 1218 (Fla. 2d DCA 2008) (finding no judicial estoppel where mutuality of parties was lacking); see also Evans v. Holland & Knight , 194 So. 3d 551, 552 (Fla. 1st DCA 2016) (setting forth special hazard analysis as requiring both "hazard at particular off-premises location" and "close association of the access route with the work premises" (emphasis added)). More specifically, estoppel does not pertain because the two Employers have adverse interests. If the claim sounded in tort, perhaps both Employers could have been liable, but if the claim instead fits under Florida's Workers’ Compensation Law, Blue Goose enjoys tort immunity (created by section 440.11(2) ’s extending tort immunity to special employers) even while not being obligated to provide worker's compensation benefits (because LFI carried its own workers’ compensation insurance, see § 440.11(2), Fla. Stat. (2014) ("The employer shall be liable for… . . . . § 440.10(2)(c). . . .
. . . . §§ 220.60(3), 440.10 )). . . . withdraw the plea under C.P.L. § 220.60(3) or move to vacate the judgment of conviction under C.P.L. § 440.10 . . . to state court's holding that petitioner's due process claim was procedurally barred under C.P.L. § 440.10 . . .
. . . We held that such a conclusion would implicate section 440.10(2), Florida Statutes, which provides that . . .
. . . . § 2254 petition in this Court in which he challenges the state trial court's denial of his CPL § 440.10 . . . a second or successive petition because (1) the current petition challenges the state court's CPL § 440.10 . . . That the petitioner does so by challenging the state-court decision denying his CPL § 440.10 motion, . . . The decision denying his CPL § 440.10 motion does not constitute a new "judgment" for habeas purposes . . .
. . . Law § 440.10(f), (g) and (h). See People v. . . . The central basis for the sought-after relief was § 440.10(g), which under certain circumstances allows . . . Law § 440.10 ("First 440 Tr." and "Second 440 Tr.," respectively), and deposition testimony taken in . . .
. . . (1)(h) (the "440.10 motion"). . . . In his 440.10 motion, Garner contended that he was denied the right to meaningful representation by trial . . . Citing to New York Criminal Procedure Law § 440.10(2)(c) and People v. . . . New York Criminal Procedure Law § 440.10(2)(c) stipulates that the court must deny a motion to vacate . . . Law §] 440.10 from being employed as a substitute for direct appeal when defendant was in a position . . .
. . . Law §§ 440.10(2)(a) and (c) (McKinney 1994)-simply prescribe a rule of decision for a court confronted . . . Consequently, the alleged failure of respondent's application to comply with §§ 440.10(2)(a) and (c) . . .
. . . . § 440.10(1)(b) ). . . . Stat. § 440.10(1)(b) ; Revoredo , 698 So.2d at 890-92 ; Motchkavitz v. L.C. . . .
. . . A petition to vacate Pierotti's conviction pursuant to New York Criminal Procedure Law ("CPL") § 440.10 . . . should have been raised upon direct appeal and the failure to so do precludes relief pursuant to CPL § 440.10 . . . A motion for leave to appeal the decision on the CPL 440.10 petition was denied on June 4, 2007. . . .
. . . .- (1) The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other . . .
. . . Similarly, in reviewing Hughes's CPL § 440.10 motion, the Albany County Supreme Court concluded that . . . Additionally, although Hughes argued conclusorily in his CPL § 440.10 motion that trial counsel "[f]ailed . . . While this action was stayed, Hughes raised this argument in a counseled CPL § 440.10 motion. . . . Regarding petitioner's wife, as the § 440.10 court found, trial counsel stated in his affidavit that . . . Id. at 91 (citing CPL § 440.10(2)(c) ); see also Clark, 510 F.3d at 393. . . .
. . . Law § 440.10(1)(h), alleging ineffective assistance of counsel. . . . Att. 1") ) (" Section 440.10 Motion"), at 6-7. . . . Att. 1 at *62), his Section 440.10 Motion, a letter from the office of Dawn M. . . . Law § 440.10(1)(h) on grounds of ineffective assistance of counsel. . . . See Pet. at 4; Section 440.10 Motion. . . .
. . . Northstar did not sublet part of its contract work to a subcontractor in the context of Florida Statute [§] 440.10 . . .
. . . The 440.10 Motion 1. . . . See 440.10 Decision at 8-9. . . . See 440.10 Decision at 10. . . . See 440.10 Decision at 36. . . . . § 440.10 Decision and Order, filed Aug. 1, 2016 (Docket # 39) ("440.10 Decision"), at 5. . . .
. . . later moved pro se for an order to vacate the judgment pursuant to New York Criminal Procedure Law §§ 440.10 . . . The petitioner filed his CPL § 440.10 motion pro se. . . . to this Court is simply an organizational refinement of the two arguments he presented in his CPL § 440.10 . . . The petitioner's CPL § 440.10 motion was based entirely on ineffective assistance of trial counsel claims . . . The respondent briefly argues that this claim is unexhausted because the petitioner in his CPL § 440.10 . . .
. . . vacate his conviction in state court pursuant to New York Criminal j Procedure Law (“C.P.L.”) section 440.10 . . . habeas petition so that he may seek to vacate his judgment in state. court pursuant to C.P.L. section 440.10 . . . motion, Petitioner only states 'that he seeks an abeyance so that he may “file a criminal procedure law [440.10 . . . Without any information and details as to the claim Petitioner seeks to' file as part of his 440.10 motion . . .
. . . Criminal Procedure Law § 440.10 on the ground that he received ineffective assistance of counsel, based . . . Appellate Division and the Court of Appeals denied leave to appeal the trial court’s denial of Spicola’s § 440.10 . . .
. . . Stat. (2008) (except as otherwise provided, “[t]he liability of an employer prescribed in s. 440.10 shall . . . VMS, Inc., 147 So.3d at 1074-75; § 440.10(l)(e), Fla. Stat. (2008). . . .
. . . Criminal Procedure Law (“NYCPL”) § 440.10(1) (h) to vacate his judgment of conviction on the grounds . . . On August 13 and 14, 2012, a post-conviction Section 440.10(l)(h) hearing was ordered concerning the . . . On January 10, 2013, the reopened Section 440.10 hearing was conducted, and Auerbach was examined by . . . 97 (2014) (holding'that a “freestanding claim of actual innocehce may be addressed pursuant to CPL 440.10 . . . The testimony of these doctors was taken as part of Petitioner’s post-conviction Section 440.10 hearing . . .
. . . . § 440.10(1)(b). . . . The Florida Supreme Court has explained that the “effect of section 440.10 is that where a subcontractor . . . “To be a contractor under [section 440.10(1) ], one must have a contractual obligation to perform some . . . , the court held that a- statute: ry employer-employee relationship existed within the meaning of § 440.10 . . .
. . . Waiters filed both a pro se motion to vacate his conviction under New York Criminal Procedure Law § 440.10 . . . (l)(h) (the “440.10 motion”) and, with the assistance of counsel, a direct appeal. . . . 4, 2011, alleging ineffective assistance of counsel for the same reasons as those identified in his 440.10 . . . The state trial court thereafter held an evidentiary hearing on Waiters’s renewed 440.10 motion on May . . . Following the hearing, on October 14, 2014, the state trial court denied Waiters’s renewed 440.10 motion . . . At the hearing to vacate Waiters’s conviction under New York Criminal Procedure Law § 440.10, conducted . . .
. . . . § 440.10, as the District Attorney concedes. . . .
. . . matter of record and are therefore improperly raised herein, as it is well established that a CPL § 440.10 . . . Law § 440.10(2)(c)). . . . Hudyih does not dispute that § 440.10(2)(c) constitutes an independent state law ground for denial, but . . . Moreover, Fulton acknowledged that New York courts apply § 440.10(2)(c), as occurred here, where the . . . Accordingly, because Hudyih’s was a record-based claim, state case law confirms'that compliance with § 440.10 . . .
. . . . §§ 440.10(1), 440.38; see, e.g., Mena v. J.I.L. Constr. Grp. . . . Stat. § 440.10(l)(g)(l). . . .
. . . Aparicio, 269 F.3d at 91 (citing GPL § 440.10 (2)(c)); see Clark v. . . . Perez, 510 F.3d 382, 393 (2d Cir.2008) (holding that “even if no state court had applied section 440.10 . . . Bennett, 353 F.3d 135, 140-41 (2d Cir.2003) (applying CPL § 440.10 (2)(c) to claims raised for the first . . .
. . . Wert and Rubber Applications alleged that section 440.10(l)(e) therefore applied. . . . Vertical relationships as set forth in section 440.10(1)(b) are subject to the liability in section 440.10 . . . and immunity in' section 440.10(1)(e). . . . (l)(b) and horizontal relationships under section 440.10(l)(e)). . . . And section 440.10 requires subcontractors to secure coverage for their employees. . . .
. . . Criminal Procedure Law § 440.10. . . . Here, there is no dispute that Section 440.10 is “firmly established and regularly followed.” . . . Criminal Procedure Law Section 440.10(2)(e). . . . To the contrary, while 440.10(2)(c) is designed “to prevent Section 440.10 from being employed as a substitute . . . Section 440.10(2)(c) provides, [T]he court must deny a motion to vacate a judgment when ... . . .
. . . order vacating O’Neal’s rape and robbery convictions pursuant to New York Criminal Procedure Law § 440.10 . . .
. . . . § 440.10 for an order vacating his conviction on the ground of newly discovered evidence, pursuant . . . to C.P.L. § 440.10(l)(g), based principally on the Ellis recant and the materials corroborating it, and . . . ineffective assistance of counsel, pursuant to C.P.L. § 440.10(l)(h), based principally on Brettschneider . . . Holder first held that “this portion of defendant’s motion to vacate must be denied pursuant to C.P.L. § 440.10 . . . Id. at 4-5 (quoting C.P.L. § 440.10(2)(c)). . . .
. . . . §§ 440.10 through § 440.50, 440.70”), For instance, 42 C.F.R. § 440.50(a) defines “physicians’ services . . .
. . . Section 440 Motion Duhs did not file a motion pursuant to C.P.L. 440.10 for vacatur of the judgment against . . . See C.P.L. 440.10(1) (“At any time after the entry of a judgment, the court in which it was entered may . . . Id. at § 440.10(l)(h). . . . . § 440.10(2)(a). . . .
. . . there is no evidence that Sacred Heart subcontracted “contract work” within the meaning of section 440.10 . . . depends on whether Sacred Heart was a so-called “statutory employer” of Mathis pursuant to section 440.10 . . . “It is well established ... that to satisfy section 440.10(l)(b), the contractual obligation may be implied . . . In other words, the “contract work” to which section 440.10(l)(b) refers may arise from an implied in . . . obligation to provide safe premises to provide a basis for statutory employer immunity under section 440.10 . . .
. . . Law § 440.10(l)(h), in the state trial court in which he was convicted. . . .
. . . . § 440.10. . . . and non-record evidence and that he thinks should have been permitted to raise it in a collateral § 440.10 . . . bottomed on an evidentiary exploration by collateral or post-conviction proceeding brought under CPL 440.10 . . .
. . . to vacate his judgment of conviction pursuant to New York Criminal Procedure Law (“NYCPL”) Section 440.10 . . . The court rejected those arguments in a decision and order dated October 1, 2007 (“Section 440.10 Ruling . . . Reynoso, [32 A.D.3d 761,] 820 N.Y.S.2d 801 (1st Dep’t 2006), dated May 2006; C.P.L. 440.10 Decision ( . . . “§ 440.10 Ruling”), dated October 1, 2007; the Petition, dated May 4, 2009; Respondent’s Declaration . . . Decision, dated October 1, 2007 ("Section 440.10 Ruling”); Petition for Habeas Relief Pursuant to 28 . . .
. . . appeal was pending, Prescott moved to vacate the judgment pursuant to New York Criminal Procedure Law § 440.10 . . .
. . . appeal, Chrysler filed a motion to vacate his conviction pursuant to New York Criminal Procedure Law § 440.10 . . . The trial court denied Chrysler’s § 440.10 motion on September 30, 2005, holding that both his claims . . .
. . . Here, the State court reviewing Watts’s motion to vacate his conviction under Section 440.10 of New York . . .
. . . Criminal Procedure Law § 440.10 (“§ 440.10”) to vacate his conviction. . . . The state court denied Fulton’s motion to vacate, resting its decision on the directive in § 440.10(2 . . . Here, the state court based its decision on the procedural rule articulated in § 440.10(2)(e). . . . Section 440.10(2)(c) requires the state court to deny a motion to vacate a judgment when, “[although . . . In denying Fulton’s § 440.10 motion to vacate, the state court explained that § 440.10(2)(c) barred Fulton . . .
. . . or has otherwise secured the payment of compensation coverage as a subcontractor, consistent with s. 440.10 . . . This conclusion is separately confirmed by reading section 440.10(e), Florida Statutes (2014), which . . . (amending §§ 440.02(15)(c) & 440.10(e)). ' After the 2003 .amendment, section 440.10(e) now reads: (e . . . Compare § 440.10(e) with § 440.11(1). . . . Accordingly, we hold that the current versions of sections 440.02(15)(c), 440.10(e), and 440.11, when . . .
. . . filed a pro se motion to vacate the judgment pursuant to New York Criminal Procedure Law (“CPL”) § 440.10 . . . By reasoned, unpublished decision issued on November 28, 2011, county court denied the CPL § 440.10 motion . . . , citing CPL § 440.10(2)(b), which requires a court to deny a motion to vacate a judgement when “[t]he . . . Jones’ appellate counsel obtained leave to appeal the CPL § 440.10 denial in conjunction with his direct . . . In his pro se CPL § 440.10 motion, Jones stated that Detective Caratelli’s testimony at a subsequent . . .
. . . See §§ 440.10(l)(b), 440.11(1), Fla. Stat. (2010). . . . Slora’s direct employer, section 440.10(l)(b) extends immunity to a “contractor [that] sublets any part . . . Sun 'n Fun’s theory was that, under the undisputed facts, section 440.10(l)(b) entitled it to immunity . . . benefits for any employee who is injured at work. § 440.10(l)(a). . . . In that connection, section 440.10(l)(b) provides: In case a contractor sublets any part or parts of . . .
. . . requires the State plan .to provide categorically needy individuals with the “services defined in § 440.10 . . . physician or dentist; and (3) are furnished in an [appropriate and approved] institution....” 42- C.F.R. § 440.10 . . .
. . . See Notice of Motion to Vacate Judgment Pursuant to C.P.L 440.10(1)(c)(h) 1, Mar. 11, 2013, Occhione . . . Law § 440.10 note (McKinney 2015) (Practice Commentaries). . . .
. . . Law § 440.10, seeking relief from his conviction. These motions were denied. . . . Law § 440.10 to vacate his conviction. . . .
. . . He then collaterally attacked his conviction pursuant to New York Criminal Procedure Law § 440.10, alleging . . . Following the trial court’s denial of the § 440.10 motion and the Second Department’s denial of leave . . .
. . . Law § 440.10 note (McKinney 2015) (Practice Commentaries) (“[N.Y.Crim. Pro. . . . Law § 440.10] was designed to encompass all extant non-appellate post-judgment remedies and motions to . . .
. . . . § 440.10 (“440 Motion”). App. I at 87-219. . . . trial court dismissed the claim as procedurally barred pursuant to New York Criminal Procedure Law § 440.10 . . . then the court should not review it in [a 440] motion” pursuant to New York Criminal Procedure Law § 440.10 . . . New York Criminal Procedure Law § 440.10(2)(c) states: 2. ... the court must deny a motion to vacate . . . Law § 440.10(2)(c). Here, Petitioner could have raised the issue regarding Ms.' . . .
. . . Law § 440.10 (“§ 440.10 motion”). State Record, Exhibit E. . . . Law § 440.10(2)(a), which bars § 440.10 review of claims determined on the merits on direct appeal. . . . Law § 440.10(2)(a). . . . Law § 440.10(2)(a). However, a denial under N.Y.Crim. Proc. . . . Law § 440.10(2)(c) precludes federal habeas review. McDowell v. . . .
. . . . § 440.10(l)(b). . . .
. . . Law §§ 440.10, 440.20 (“440 Motion”). Petition at ¶ 9, p. 16; Opp. at ¶ 75-76. . . .
. . . No. 10-2 at 581-592, Notice of Motion and Affidavit in Support of CPL § 440.10 Motion, dated December . . . Id. at 594-600, Attorney Affirmation in Support of Petitioner’s CPL § 440.10 Motion. . . . Id. at 716-718, Affirmation in Opposition to Petitioner’s CPL § 440.10 Motion. . . . Id. at 804 (citing, inter alia, CPL § 440.10(2)(c), (3)(a)). . . . Respondent advises that Deyo’s CPL § 440.10 motion was denied following a hearing. R. . . .
. . . Law §§ 440.10 and 440. 20. Opp. to Petition at ¶ 22; Tr. II.l at 48-79. . . .
. . . April 29, 2010, Petitioner moved, pro se, pursuant to New York Criminal Procedure Law (“CPL”) section 440.10 . . . Aug. 17, 2010) (citing N.Y.C.P.L. § 440.10(2)(c), annexed to Pet. as Ex. D.) . . . Saunders, 587 F.3d at 548 (noting that a section 440.10 motion is “pending” beginning on the day it is . . . See Plato, 638 F.Supp.2d at 345 (“neither of [petitionerl’s CPL [section] 440.10 mo-tions had any effect . . .
. . . Law § 440.10(2)(c) “requires a state court to deny a motion to vacate a judgment based on a constitutional . . . “The purpose of this rule ‘is to prevent Section 440.10 from being employed as a substitute for direct . . .
. . . that Sunbelt was a subcontractor on the project entitled to horizontal immunity pursuant to section 440.10 . . . See § 440.10, Fla. Stat. (2004). . . . The doctrine of horizontal immunity, re-enacted in 2004, under section 440.10(1)(e), Florida Statutes . . . Thus, the intent of section 440.10 is “to ensure that employees engaged in the same contract work are . . . Stated another way, “[t]he rationale of [section 440.10] is to equate the situation of work[ers] at a . . .
. . . (“CPL”) §§ 440.10(l)(f), (h). . . . planting of falsified evidence, and Hernandez’s absence from testifying as proeedurally barred under CPL § 440.10 . . .
. . . . § 440.10 motion briefs and any state court decision on that motion, if available; and (3) copies of . . .
. . . the Bronx County Supreme Court to vacate his conviction pursuant to New York Criminal Procedure Law § 440.10 . . . In 2009 Smith, through counsel, filed a second § 440.10 motion, arguing for the first time that his trial . . . The State Court denied Smith’s § 440.10 motion on February 8, 2010. . . . under 28 U.S.C. § 2254, reasserting the ineffective assistance claim raised earlier in his counseled § 440.10 . . .
. . . Section 440.10 Mot. Exh. 8. . . . Section 440.10 Mot. Exh. 4. . . . Section 440.10 Mot. at 7-10. . . . Section 440.10 Mot. at 6. . . . . Section 440.10 Mot. Exh. 24. . . .
. . . JCC employed the proper legal standards in concluding OCSB was not a statutory employer under section 440.10 . . . legal theories to establish OCSB as her employer, including that of a statutory employer under section 440.10 . . . Claimant’s theories, finding, in particular, that OCSB was not Claimant’s statutory employer under 440.10 . . . In the final order on appeal, the JCC ruled that OCSB was not a statutory employer under section 440.10 . . . It is well established, however, that to satisfy section 440.10(l)(b), the contractual obligation may . . .
. . . to permit him to move to set aside his verdict pursuant to New York Criminal Procedure Law Section 440.10 . . . Specifically, at the time Newton filed suit, Section 440.10(l)(g) of the New York Criminal Procedure . . . Law § 440.10(g) (McKinney 1970). . . . At all relevant times, Section 440.10 provided as follows: At any time after the entry of a judgment, . . . Law § 440.10(l)(g) (McKinney 2012); N.Y.Crim. Proc. Law § 440.10(l)(g) (McKinney 1970). . . . .
. . . No. 11-1, Affidavit and Memorandum of Law in Support of CPL § 440.10 Motion. . . . No. 11-2, People’s Response in Opposition to CPL § 440.10 Motion, at 2-3. . . . No. 11-17, Affirmation in Opposition to CPL § 440.10 Motion, at 5-7. . . . motion, and that denial of his claims was also warranted pursuant to CPL § 440.10(3)(c). . . . In the first CPL § 440.10 motion, petitioner contended in relevant part that counsel was ineffective . . .
. . . Section 440.10(l)(b), Florida Statutes (2012), provides that “[i]n case a contractor sublets any part . . . carriers, and remand for further proceedings to include consideration of the applicability of section 440.10 . . .
. . . Law § 440.10, Contreras has never indicated to the state courts that he, in fact, saw the Note on the . . .
. . . which was nine months after he had sought leave to appeal the March 3, 2000, denial of his section 440.10 . . .
. . . In March 2013, Petitioner moved pursuant to New York Criminal Procedure Law Section 440.10 to vacate . . .
. . . (“Section 440.10 Motion”), which the Court deemed included in his Petition, (id. at 6), all of which . . . (R & R 17; see also Resp.’s Ex. 39 (Mem. of Law in Supp. of Section 440.10 Motion), at i, 8.) . . . (See R & R 17; Mem. of Law in Supp. of Section 440.10 Motion at i.) . . . (R & R 17; Mem. of Law in Supp. of Section 440.10 Motion at i, 52.) . . . As for Points One, Three, and Eight of Petitioner’s Section 440.10 Motion, this Court dismissed these . . .
. . . Division and subsequently a motion in the trial court pursuant to New York Criminal Procedure Law § 440.10 . . .
. . . liable for and shall secure the payment of compensation to all such borrowed employees as required in s. 440.10 . . .
. . . Section 440.10(l)(a) of the Florida Statutes provides that “[ejvery employer ... shall be liable for, . . . Section 440.10(l)(b) extends the liability imposed by section 440.10(l)(a) on employers to secure insurance . . . The effect of section 440.10 is that where a subcontractor performing part of the work of a contractor . . . See § 440.10(l)(b), Fla. Stat. (2013); § 440.11(1), Fla. Stat. (2013). . . . Section 440.11(1) provides: The liability of an employer prescribed in s. 440.10 shall be exclusive and . . .
. . . .— (1) The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other . . . Haines was the decedent’s "statutory employer” entitled to qualified immunity pursuant to sections 440.10 . . .
. . . Section 440.10 Motion Jackson argued in his § 440.10 motion that defense counsel’s performance was deficient . . . Direct Appeal While his § 440.10 motion remained pending in the trial court, Jackson filed a counseled . . . Jackson’s ineffective assistance arguments were essentially the same as those raised in his § 440.10 . . . Law § 440.10(2)(e) (stating that the court “must deny” a § 440.10 motion when sufficient facts appear . . . Law § 440.10(2)(b)). . . .
. . . subsequently filed two motions to vacate his conviction pursuant to New York Criminal Procedure Law § 440.10 . . . ADA McCarthy also submitted a declaration in connection with the petitioner’s first § 440.10 motion, . . . However, in his second section § 440.10 motion, he claimed that he was denied the effective assistance . . . The petitioner raised a challenge to the validity of his Indictment in connection with his second § 440.10 . . . The petitioner does not appear to argue here — as he did in support of his second § 440.10 motion — that . . .
. . . McCray’s motion under New York Criminal Procedure Law § 440.10 was also denied by the state court, and . . . jury: he attempted to present this claim in his pro se motion under New York Criminal Procedure Law § 440.10 . . .
. . . C.P.L. § 440.10, to vacate his judgment. (Id. ¶ 22). . . . 4.2006 C.P.L. § 440.10 Motion ¶¶ 1824; see also Deel. ¶¶ 12, 22). . . . C.P.L. § 440.10 motion. . . . C.P.L. § 440.10 motion. . . . “good cause shown”); § 440.10(l)(g) (permitting § 440.10 motions when “[n]ew evidence has been discovered . . .
. . . .”) -§ 440.10. The trial court (Buscaglia, J.) denied the motion on August 31, 2011. . . . Petitioner filed a second' C.P.L. § 440.10 motion on February 22, 2012. . . .
. . . . § 440.10(1). . . . The Florida Supreme Court has explained that the “effect of section 440.10 is that where a subcontractor . . . Orama, 552 So.2d at 925-26 (rejecting general contractor’s argument that Section 440.10(1) did not apply . . .
. . . (Pet. ¶ 14; see also Resp’t’s Ex. 42 (§ 440.10 Motion).) . . . Law § 440.10(3)(a)).) . . . Law § 440.10(2)(a). . . . to § 440.10(2)(a)); D’Alessandro v. . . . Law § 440.10(3)(a)).) . . .
. . . district court erred in failing to conclude that the New York State Supreme Court’s denial of his CPL § 440.10 . . .
. . . Jefferson 440.10 Aff. ¶ 4. . . . Jefferson 440.10 Aff. ¶ 5. . . . See 440.10 Notice of Motion, Docket Entry 5-18, at 1. . . . Pet. 440.10 Affirm. ¶ 1; Pet. 440.10 Mem. at 1-2, Docket Entry 5-18 at 4, 32-33. . . . Law Section 440.10 motion to vacate his conviction, Docket Entry 5-18 at 29. . . .
. . . Section 440.10(l)(a), Florida Statutes (2008) provides: Every employer coming within the provisions of . . . Section 440.10(l)(b) provides further: In case a contractor sublets any part or parts of his or her contract . . . Under section 440.11(1), Florida Statutes (2008): The liability of an employer prescribed in s. 440.10 . . .
. . . Based on the newly revealed information, Poventud moved, pursuant to New York Criminal Procedure Law § 440.10 . . . Attorney’s Office opposed Poventud’s release on bail and indicated its desire to appeal the court’s § 440.10 . . . Criminal Procedure Law § 440.10, to vacate his conviction on the ground that the prosecution had impermissibly . . . On December 6, 2004, Plaintiffs assigned counsel filed a CPL § 440.10 motion to vacate his conviction . . .
. . . . § 440.10 to set aside one of his prior misdemeanor convictions. . . . the first time that, as his counsel had predicted at sentencing, the state court had granted his § 440.10 . . . petitioner explains that he “wrote the state Court several times inquiring the status of his C.P.L. 440.10 . . .
. . . Law § 440.10(2)(b)). . . . rule, specifically New York Criminal Procedure Law § 440.10(2)(b). . . . Law § 440.10(2)(b). See People v. . . . Law § 440.10(1). . . . . Law § 440.10(2)(b). . . . .
. . . reversing an order finding the amendment was a clarification; concluding that “the 2003 revision to section 440.10 . . . years after the Court decided Abernathy and some twenty-nine years after the 1974 amendment to section 440.10 . . .
. . . . § 440.10. He presented two issues for review. . . . 19, 2008, petitioner filed a pro se motion to vacate the judgment of conviction pursuant to section 440.10 . . . of these allegations on direct appeal; however, petitioner asserted both of these claims in his CPL 440.10 . . . The trial court denied petitioner’s contentions pursuant to CPL § 440.10(2)(c), which provides that a . . . Further, the cases in this Circuit hold that C.P.L. § 440.10(2)(c) is an “adequate and independent” state . . .
. . . a pro se motion to vacate the judgment of conviction pursuant to New York Criminal Procedure Law § 440.10 . . . In its response to the section 440.10 motion, the State maintained that it had never offered the defendant . . . The lynchpin of the magistrate judge’s decision was his determination that in denying the section 440.10 . . . The relevant portion of the affirmation submitted by ADA Krisehel in the section 440.10 proceedings was . . . New York Criminal Procedure Law § 440.10(2)(a) provides that a "court must deny a motion to vacate a . . .
. . . . § 440.10: Lawyer never told defendant that [N.Y. . . .
. . . The Howells then moved in state court, pursuant to New York’s Criminal Procedure Law § 440.10, to vacate . . . Second, we agree with the District Court that, in ruling on the § 440.10 motions, the state court did . . . Rather, the § 440.10 court merely explained that it did not believe that the Howells’ trial attorneys . . . If the § 440.10 court had found some merit to the Howells’ Confrontation Clause claims, it is conceivable . . . Pursuant to Criminal Procedure Law § 440.10(l)(h), "[a]t any time after the entry of a judgment, the . . .
. . . Thereafter, Green moved pursuant to Criminal Procedure Law § 440.10(l)(b),. . . . leave to appeal from the County Court order denying his motion pursuant to Criminal Procedure Law § 440.10 . . .
. . . State Section 440.10 Proceeding........................................150 D. . . . State Section 440.10 Proceeding In 2010, petitioner moved to vacate the judgment of conviction pursuant . . . to Section 440.10 of the New York Criminal Procedure Law. . . .
. . . .”) § 440.10 on the grounds that: (1) Petitioner’s trial counsel was ineffective because counsel: (a) . . . Law §§ 440.10(2)(b), (c). . . . C.P.L. § 440.10, and it-was summarily denied (Order dated March 10, 2008). . . . Petitioner has therefore failed to show that the state court ruling on his 440.10 motion to vacate was . . . Law §§ 440.10(2)(b), (c). It was not. . . .
. . . The coram nobis petition repeated the same grounds raised in the Section 440.10 motion. (Id.) Mr. . . . Smith’s NYCPL § 440.10 motion was assigned to Justice Torres, not the trial judge, because the trial . . . Smith’s Section 440.10 motion again be denied, but that a corrected opinion issue. . . . ’s claims were procedurally barred, under NYCPL § 440.10(3)(c), because Mr. . . . Smith’s application for leave to appeal the denial of his second NYCPL § 440.10 motion. . . .
. . . . § 440.10 motion in New York State Supreme Court, seeking to vacate his conviction on the same grounds . . . , 2007, I stayed consideration of Whitley’s habeas petition until the New York courts decided his § 440.10 . . . Meanwhile, the New York Supreme Court denied Whitley’s § 440.10 motion on April 16, 2007, holding that . . .
. . . Senkowski, 587 F.3d 543 (2d Cir.2009) the Second Circuit held that "a § 440.10 motion is 'pending' for . . .
. . . Zeiger, 16 So.3d at 913; see also § 440.10(1)(e). B. . . .
. . . . §§ 440.10-.il (2003). . . . Stat. §§ 440.10-.il. . . . favorable to the plaintiff, Vallejos cannot prove that Infinity was grossly negligent under section 440.10 . . . Stat. § 440.10(1)(e) (2). . . . Stat. § 440.10. . An election of remedies presupposes a right to at least two viable options. . . .
. . . Section 440.10(1)(a), Florida Statutes (2007), again holds every employer, contractor, and subcontractor . . . More specifically, section 440.10(1)(b) states: (b) In case a contractor sublets any part or parts of . . . The trial court determined that the stipulated facts brought this case within the terms of section 440.10 . . . a part of its work to a subcontractor— Southern Crane — such that, under the provisions of section 440.10 . . . as the subcontractor, could not claim the “exclusiveness-of-liability” benefit conferred by section 440.10 . . .
. . . Law section 440.10. See Dkt. No. 13, Ex. A, Motion to Vacate Judgment (“Mot. to Vacate”) at 2. . . . Law § 440.10(2)(b)). . . . Law § 440.10(2)(e) (motion to vacate must be denied where the claim is a matter of record that could . . . It is well-settled in this Circuit that section 440.10(2)(b) can provide an adequate and independent . . . See Hemphill, 2004 WL 943567, at *8 (holding that a claim denied under section 440.10(2)(b), which is . . .