Malacarne v. City of Yonkers Parking Authority

• Decision Date: 28 December 1976
• Parties: , 359 N.E.2d 992 Claim of Elizabeth MALACARNE, Appellant, v. CITY OF YONKERS PARKING AUTHORITY et al., Respondents. Workmen's Compensation Board, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 402

391 N.Y.S.2d 402

41 N.Y.2d 189, 359 N.E.2d 992

Claim of Elizabeth MALACARNE, Appellant, v. CITY OF YONKERS PARKING AUTHORITY et al., Respondents.

Workmen's Compensation Board, Respondent.

Court of Appeals of New York.

Dec. 28, 1976.

Kenneth Thomas Edson, P.C., and Anne G. Kafka, New York City, for City of Yonkers Parking Authority and another, respondents.

FUCHSBERG, Judge.

The Workmen's Compensation Board found that Maurice Malacarne was killed in the course of his employment. The Appellate Division held that he was not and, accordingly, reversed. For the reasons which follow, we believe its decision should be upheld.

The decedent's usual job, as one of two part-time attendants who manned a Yonkers Raceway parking lot, was to jockey cars, collect parking fees and, shortly before its 11 p.m. closing time, deposit the evening's proceeds in a bank located directly across the street. However, on January 23, 1971, having arranged for his coemployee to take sole charge, Malacarne quit work about 45 minutes earlier than usual in order to meet his wife at a party at her brother Frank Merola's home, about a half hour's automobile drive away from the parking facility. Having parked his car near his brother-in-law's house, the decedent was walking toward it when he was shot to death by an unknown assailant.

No witness either to Malacarne's activities while he was en route from his job to the party or to the shooting itself has ever been found. Members of the decedent's family, as well as neighbors who heard the shot, found the wounded man lying on the sidewalk in front of the house. Malacarne's personal possessions, which included a wallet containing about $250 in cash, were intact.

The authorities had arrived almost at once, initially in the form of two patrol cars in charge of police officers named Campanelli and Masi. They immediately questioned the injured man, being able to do so without any difficulty since Malacarne, who was soon thereafter to lapse into an incommunicative state from which he was never to recover, was then still both conscious and lucid. Following that inquiry and the garnering of such information as brother-in-law Merola, himself a police officer, and a second brother-in-law, who had also attended the party, were able to furnish, Officer Masi that very night made entries in his official memorandum book as required by police department regulations. He noted therein that the decedent had said that his assailant 'was wearing a tan full length trench coat', that he 'appeared nervous', that he acted like he was 'fooling around', that, so far as the weapon was concerned, he 'had in his hand what appeared to be an umbrella', that 'he (Malacarne) offered money to the assailant', an offer the assailant did not accept, and that Malacarne then 'walked away at a fast pace yelling for his brother-in-law', the policeman.

The decedent was rushed to the hospital by ambulance within about five minutes after the police arrived. At the hospital, only about 10 minutes after decedent had left the scene, Masi checked on the information he had received by reinterviewing Malacarne; Malacarne had nothing to add. As Masi put it, '(h)e told me the same thing he told me at the scene.'

The physician charged with the duty of obtaining a history from Malacarne at the hospital also advised Masi that Malacarne had told him 'approximately the same thing'. Specifically, the doctor's entry stated that Malacarne said that he had been shot, that he had told his assailant not to fool around with him because his brother-in-law was a police officer and that it was while he was running away shouting for his brother-in-law that he was shot in the back. The hospital record indicated that the bullet had indeed entered from the back, a fact further confirmed by the location of the powder burns.

Thereafter, starting with the night of the shooting, under the direction of an officer named Lieutenant Pellicci, the police, with the co-operation of both the District Attorney and the Sheriff's office, undertook a long, intensive and wide-ranging, though ultimately unsuccessful, investigation to solve the crime. In the search for clues and a motive there were conversations with decedent's brothers-in-law, neighbors and others who might possibly shed some light on the inquiry. The voluminous file thus generated in the end showed not a bit of information beyond that originally reported by Masi. After the exhaustion of all possible sources of information, Malacarne's killing had to be regarded as an unsolved street crime.

But the scene then shifts. The time is almost a year and a half later. The setting is the workmen's compensation hearing. The Dramatis personae are the same, but the story is different.

Brother-in-law Merola testifies that decedent, while lying on the sidewalk after the shooting, told him that his assailant had demanded 'the money bag with the money from the parking lot' and that he said 'that if it was money that he wanted, to take his own wallet'. In view of the fact that Merola was himself an experienced police officer, that he recognized that motive was central to any possible discovery of those who had murdered his sister's husband, and that he had discussions 'in relation to the crime' with the investigating police officers on various occasions, it is odd that his justification for never having told the authorities so much as a word about decedent's reference to a 'money bag' is a lame 'nobody asked me that' and 'in the excitement, it was slipped up'. Most interestingly, the police records do indicate that it had never occurred to Merola to volunteer the dead man's words even though he otherwise aggressively encouraged Lieutenant Pellicci to try to find a link between the decedent's employment and his death. Pellicci's efforts proved no such link.

The manner of the testimony of the second brother-in-law also merits comment. His initial testimonial description of the decedent's sidewalk statement is bare of any 'money bag' reference; it becomes necessary for claimant's counsel to prod him in order to get him to flesh out the dying man's words so as to include 'They asked for the money bag'. It is even stranger that the single neighbor and friend of Merola's who appears with him before the compensation referee testifies that he heard practically nothing of the Merola conversation with the decedent except the remark about a money bag. 'That is all I heard', he insists. It never seems to have occurred to either of these witnesses that any of the dozen or more police officers at the scene or those who made the later investigative inquiries would find this information of interest.

Finally, Officer Masi, following Officer Merola to the stand, enlarges on his official police entries by the vague recollection that, 'As I recall, something was said that he usually made the deposits from the parking lot at Yonkers Raceway, and this night he did not', to which he voluntarily adds his own pure speculation, 'I thought at this time this is what they were after'. Queried about why this matter was omitted from his written report in what had all the earmarks of a first degree murder case, he takes refuge behind the assertion that 'in the confusion you can forget something and not put something down'.

Despite the fact that somehow not one of these witnesses' hearsay knowledge of a possible motive for robbery found its way into the formal and official records of the thorough investigation the authorities had made and that no other proof of any kind linked Malacarne's work with his shooting by an unknown person at a time long after he had left his job and at a place half an hour's drive away, the board found that Malacarne's injuries arose 'out of and in the course of' his employment (Workmen's Compensation Law, § 10).

It is pertinent therefore to say that, while courts called upon to review quasi-judicial findings of an administrative agency are of course bound to affirm those supported by substantial evidence (Matter of Fisher (Levine), 36 N.Y.2d 146, 150, 365 N.Y.S.2d 828, 832, 325 N.E.2d 151, 153), and, in a workmen's compensation case, there is a statutory presumption that 'in the absence of substantial evidence to the contrary * * * the claim comes within the provision of this chapter' (Workmen's Compensation Law, § 21, subd. 1), it is well established that a claimant is not thereby totally relieved of 'the burden of showing that accidental injuries suffered by him actually were sustained in the course of his employment and arose out of the employment' (see Matter of Seymour v. Rivera Appliances Corp., 28 N.Y.2d 406, 322 N.Y.S.2d 243, 271 N.E.2d 224; Matter of Daus v. Gunderman & Sons, 283 N.Y. 459, 465, 28 N.E.2d 914, 917). Without such proof, an award cannot properly be granted; it is then unsubstantiated under the law.

It shoud be noted that the test to be met is stated in the conjunctive. The injury must be one 'arising out off' the employment, that is, it must be 'a natural incident to the work * * * one of the risks connected with the employment, flowing therefrom as a natural consequence and directly connected with the work'. It must also arise 'in the course of the employment', that is, 'it must have been received while the employee was doing the work for which he was employed' (Matter of Scholtzauer v. C. & L. Lunch Co., 233 N.Y. 12, 14--15, 134 N.E. 701, 702; Matter of Wilson v. General Motors Corp., 298 N.Y. 468, 84 N.E.2d 781).

Consequently, even when injuries arise out of the employment, the employer is under no duty to compensate his employees if the injuries arise while the employees are 'pursuing their private interests on their own time and at a distance from their employer's premises', since they would then not be in the course of their employment (Matter of Wilson v. General Motors Corp., supra, p. 476, 84 N.E.2d p. 786). If, therefore, there was no proof in the present case that the...