Hawthorne v. Peartrees, Inc.
| Decision Date | 24 March 1977 |
| Citation | 56 A.D.2d 961,392 N.Y.S.2d 716 |
| Court | New York Supreme Court — Appellate Division |
| Parties | Claim of Frederick HAWTHORNE, Respondent, v. PEARTREES, INC., et al., Appellants, and O'Keefe Auto Service Corporation et al., Appellants, Workmen's Compensation Board, Respondent. |
Philip J. Caputo, New York City, for appellants Peartrees, Inc., et al.
Fischer Bros., New York City (William F. Fischer, Jr., New York City, of counsel), for appellants O'Keefe Auto Service Corp., et al.
Louis J. Lefkowitz, Atty. Gen., Albany (Morris N. Lissauer, Albany, of counsel), for respondent Workmen's Compensation Board.
Before GREENBLOTT, J.P., and SWEENEY, MAIN, LARKIN and HERLIHY, JJ.
Appeal from decisions of the Workmen's Compensation Board, filed July 11, 1974 and December 26, 1974, which reversed a Referee's decision and held that the deceased employee's accident arose out of and in the course of his employment.
Following a one-car accident at approximately 3:45 A.M. on August 31, 1971, the now deceased employee was discovered severely injured in an overturned automobile blocking the soughbound lanes of the West Side Highway near the Chambers Street Exit in New York City. According to his testimony, he was employed at the time by appellant Peartrees, Inc., as a bookkeeper and assistant floor manager and also performed some tasks for the New York Aoto Rental Company, which was operated out of Peartrees' Restaurant by appellant O'Keefe Auto Service Corporation. One Michael O'Keefe served as president of both appellant corporations, and the deceased testified that it was upon the order of Mr. O'Keefe that he was driving one of New York Auto Rental's cars to his home at 60 Riverside Drive in Manhattan when the mishap occurred. Finding that the accident arose out of and in the course of the deceased's employment and that appellant Peartrees, as general employer, and appellant O'Keefe Auto, as special employer, were equally liable therefor, the board reversed the decision of a Referee disallowing the claim and awarded the deceased compensation benefits.
The appellants all contend that the record does not contain substantial evidence to support the board's finding that the accident arose out of and in the course of the employment. Essentially, both sets of appellants contend that the testimony of the deceased that he was on his way home at the time of the accident is incredible.
Credibility is for the board and in this case the critical factual issue was whether or not the claimant was ordered by the owner and president of both employers to drive a rental care from the employers' premises to his home. The claimant testified that he was so ordered and the owner and president of the employers conceded that he at least knew that one of the rental cars was to be taken home by the claimant as a favor to the president so that it would not be illegally parked on New York City streets. The employers' representative also testified in substance that, among others, the claimant was expected to cause the rental cars to be moved from two-away zones around the restaurant. If the claimant's testimony as to being ordered to drive the car had needed corroboration, this record amply provides it, including but not limited to the employers' report of accident. The board could have found either way and its choice on credibility is not subject to change upon this appeal (see Workmen's Compensation Law, §§ 20, 23; Matter of Guggenheim v. Hedke & Co., 32 A.D.2d 1017, 1018, 301 N.Y.S.2d 792, 794, affd. 27 N.Y.2d 596, 313 N.Y.S.2d 409, 261 N.E.2d 407; Matter of Molina v. West Coast Container Co., 28 A.D.2d 1057, 284 N.Y.S.2d 62; Matter of Sosnovich v. Trefflich Bird & Animal Corp., 12 A.D.2d 538, 206 N.Y.S.2d 845; Matter of Trama v. Gardiene, 281 App.Div. 720, 117 N.Y.S.2d 807; Matter of Flugel v. Odenbach Shipbuilding Corp., 272 App.Div. 984, 72 N.Y.S.2d 692).
The claimant testified that at the time of the accident he was on his way home and whether or not the route was direct only goes to the question of a substantial deviation from the employment and in this case there is no evidence of any deviation which could have caused the accident (see Matter of Sosnovich v. Trefflich Bird & Animal Corp., supra). Unlike Matter of Pasquel v. Coverly, 4 N.Y.2d 28, 171 N.Y.S.2d 848, 148 N.E.2d 899 the claimant herein was required by his employment to be traveling after a night of little sleep.
The additional contention of the appellant, Peartrees, Inc., that the record does not support any connection between its employment and the accident is without any merit.
Decisions affirmed, with one bill of costs to the Workmen's Compensation Board against the appellants jointly.
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