Holck v. Town of Hempstead--Dist. No. 2

• Decision Date: 10 July 1979
• Citation: 420 N.Y.S.2d 211,47 N.Y.2d 993
• Parties: , 394 N.E.2d 281 In the Matter of the Claim of Gary HOLCK, Appellant, v. TOWN OF HEMPSTEAD DISTRICT NO. 2 et al., Respondents, Workers' Compensation Board, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 211

420 N.Y.S.2d 211

47 N.Y.2d 993, 394 N.E.2d 281

In the Matter of the Claim of Gary HOLCK, Appellant, v. TOWN OF HEMPSTEAD DISTRICT NO. 2 et al., Respondents, Workers' Compensation Board, Respondent.

Court of Appeals of New York.

July 10, 1979.

Mauro A. Contrastano, New York City, for appellant.

William L. Weinstock and Peter M. Pryor, New York City, for respondents.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

Claimant was injured while playing soccer outside his place of employment during a lunch break. His claim for compensation was disallowed by the Workers' Compensation Board, and the Appellate Division affirmed.

There is no basis for disturbing the board's decision. Whether claimant's noontime recreational activity was an incident of employment so as to arise out of and in the course of employment is a question of fact (see, e. g., Matter of Brown of United Servs. for Air, 298 N.Y. 901, 84 N.E.2d 810, affg. 273 App.Div. 932, 78 N.Y.S.2d 37; Matter of Beiring v. Niagara Frontier Tr. System, 23 A.D.2d 611, 256 N.Y.S.2d 365, mot. for lv. to app. den. 15 N.Y.2d 485, 260 N.Y.S.2d 1025, 207 N.E.2d 621; Matter of Wilson v. General Motors Corp., 272 App.Div. 845, 70 N.Y.S.2d 109). It cannot be said on this record that the determination of the board is unsupported by substantial evidence.

COOKE, C. J., and JASEN, GABRIELLI, JONES, WACHTLER and MEYER, JJ., concur in memorandum.

FUCHSBERG, J., taking no part.

Order affirmed.