Anadio v. Ideal Leather Finishers

• Decision Date: 29 April 1969
• Citation: 299 N.Y.S.2d 489,32 A.D.2d 40
• Parties: Claim of Dominick T. ANADIO, Respondent, v. IDEAL LEATHER FINISHERS et al., Appellants. Workmen's Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 489

299 N.Y.S.2d 489

32 A.D.2d 40

Claim of Dominick T. ANADIO, Respondent, v. IDEAL LEATHER FINISHERS et al., Appellants.

Workmen's Compensation Board, Respondent.

Supreme Court, Appellate Division, Third Department.

April 29, 1969.

Ainsworth, Sullivan, Tracy & Knauf, Albany (John E. Knauf, Albany, of counsel), for appellants.

Louis J. Lefkowitz, Atty. Gen. (Daniel Polansky and Jorge L. Gomez, Asst. Attys. Gen., New York City, of counsel), for respondent Workmen's Compensation Bd.

Walworth & Harding, Albany (Fayette C. Walworth, Albany, of counsel), for claimant-respondent.

Before GIBSON, P.J., and HERLIHY, REYNOLDS, STALEY and COOKE, JJ.

COOKE, Justice.

This is an appeal from a decision of the Workmen's Compensation Board, filed January 10, 1968, the sole question presented being whether claimant's injury arose out of and in the course of his employment.

Claimant, 16 years old and a high school student, worked as a part-time office and delivery employee for Ideal Leather Finishers, owned by his father and of which his brother Joseph was the superintendent. Aware that there would be only a morning session of school for claimant on December 22, 1965, the start of Christmas recess, Joseph left a panel truck at his parents' home on the previous evening with instructions to claimant to pick up a quantity of skins at the shop and deliver them to Gloversville Leather Co. before school and to arrange for pickups there during the day. Upon delivery as instructed, Gloversville Leather's superintendent notified claimant that there would be a leather pickup for him after lunch. With school over at about 11:30 A.M., claimant and three other students went for lunch to his parents' camp at Caroga Lake, 10 miles distant from Gloversville. After eating and one drink of scotch by claimant and one or two by the others, shortly after 1:00 P.M., they headed towards Gloversville, with claimant on his way to the Gloversville Leather Co. to pick up the leather to take to his father's plant and, when about two miles from destination, the panel truck hit a patch of ice and left the road, so that claimant suffered a fractured vertebrae with resulting paraplegia.

To be compensable, an injury must arise out of and in the course of employment (Workmen's Compensation Law § 10; Matter of Wilson v. General Motors Corp., 298 N.Y. 468, 472, 84 N.E.2d 781 783) and it is well settled that those activities which are purely personal pursuits are not within the scope of employment (Matter of Pasquel v. Coverly, 4 N.Y.2d 28, 171 N.Y.S.2d 848, 148 N.E.2d 899), the test to be applied, in determining whether specific activities are within the scope of employment or purely personal, being the reasonableness of such activities, i.e., whether they are reasonable incidents of the employment under the relevant circumstances (Matter of Tyler v. Gilbert, 29 A.D.2d 591, 285 N.Y.S.2d 452; Matter of Dreyfus v. Philips Labs., 28 A.D.2d 1033, 283 N.Y.S.2d 765; Matter of Sarriera v. Axel Electronics, 25 A.D.2d 592, 267 N.Y.S.2d 84; Matter of Hancock v. Ingersoll-Rand Co., 21 A.D.2d 703, 249 N.Y.S.2d 243). Likewise, where an employee is required by the nature of his job to undergo intermittent periods of enforced waiting, such as where he is told to wait or while waiting for materials to be processed, he is not required to remain immobile and inactive but he is free to indulge in any reasonable activity during the waiting period (Matter of Sarriera v. Axel Electronics, Supra; Matter of Putnam v. New York State Dept. of Public Works, 24 A.D.2d 801, 263 N.Y.S.2d 796; Matter of Ingraham v. Lane Constr. Corp., 285 App.Div. 572, 573, 139 N.Y.S.2d 347, 348, affd. 309 N.Y. 899, 131 N.E.2d 577).

While there are a limited number of cases treating the issue of 'arising out of and in the course of the employment' as a question of law when the underlying facts are undisputed, these have involved factual situations such as where only one inference reasonably could be drawn (Matter of Kaplan v. Zodiac Watch Co., 20 N.Y.2d 537, 285 N.Y.S.2d 585, 232 N.E.2d 625; Matter of Paduano v. New York State Workmen's Compensation Bd., 30 A.D.2d 1009, 294 N.Y.S.2d 318), or an instrumentality in no conceivable way connected with the work routine (Matter of Slater v. Pilch, 17 A.D.2d 340, 234 N.Y.S.2d 513). However, great latitude has been given the board in determining whether a given accident suffered by an outside employee (cf. Matter of Daly v. State Ins. Fund, 284 App.Div. 174, 177, 130 N.Y.S.2d 440, 442, mot. for lv. to app. den. 307 N.Y. 942, 122 N.E.2d 336) could be found to have occurred within the time and space limits of employment (Matter of Gruntler v. Home Reader Serv., 19 A.D.2d 670, 241 N.Y.S.2d 436; Matter of O'Connor v. Johnson & Johnson, 12 A.D.2d 846, 211 N.Y.S.2d 1, mot. for lv. to app. den. 9 N.Y.2d 611, 215 N.Y.S.2d 1025, 174 N.E.2d 924; Matter of Cliff v. Dover Motors, 11 A.D.2d 883, 202 N.Y.S.2d 914, affd. 9 N.Y.2d 891, 216 N.Y.S.2d 703, 175 N.E.2d 831) and, where such an employee admittedly is acting in furtherance of the employer's business when injured, the reasonableness of his immediately precedent personal activities has required a...