Mintiks v. Metropolitan Opera Ass'n, Inc.

• Decision Date: 04 January 1990
• Citation: 153 A.D.2d 133,550 N.Y.S.2d 143
• Parties: In the Matter of the Claim of Janis MINTIKS, as Administrator of the Estate of Helen H. Mintiks, Appellant, v. METROPOLITAN OPERA ASSOCIATION, INC., et al., Respondents. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 143

550 N.Y.S.2d 143

153 A.D.2d 133

In the Matter of the Claim of Janis MINTIKS, as Administrator of the Estate of Helen H. Mintiks, Appellant, v. METROPOLITAN OPERA ASSOCIATION, INC., et al., Respondents Workers' Compensation Board, Respondent.

Supreme Court, Appellate Division Third Department.

Jan. 4, 1990.

Kravitz & Becker (Lester J. Kravitz, Michael J. Becker and Casey A. Fundaro, of counsel), New York City, for appellant.

Weiss & Wexler (Louis R. Salvo, of counsel), New York City, for Metropolitan Opera Ass'n, Inc. and another, respondents.

Before MAHONEY, P.J., and KANE, CASEY, LEVINE and MERCURE, JJ.

LEVINE, Justice.

On July 23, 1980, decedent, an accomplished violinist, performed at the Metropolitan Opera House (hereinafter Met) in New York City as a member of an orchestra engaged to accompany the Berlin Opera Ballet. At 9:30 P.M., during an intermission in the performance, decedent left the orchestra pit and never returned. It was later discovered that decedent had been brutally murdered on the roof of the Met. Craig Crimmins, a stage hand employed by the Met, was subsequently convicted of killing decedent (People v. Crimmins, 99 A.D.2d 439, 470 N.Y.S.2d 617, affd 64 N.Y.2d 1072, 489 N.Y.S.2d 879, 479 N.E.2d 224).

The events leading to decedent's death were pieced together by evidence obtained from claimant (decedent's husband), other performers who saw decedent prior to her disappearance, the investigation by the police and Crimmins' written confession. Based on this evidence, it was determined that during the intermission decedent was looking for Valery Panov, one of the principal dancers and choreographers for the Berlin Opera Ballet. Decedent wanted to arrange a meeting between Panov and her husband, who is a sculptor, to discuss various scene and set designs.

In her attempt to locate Panov, decedent boarded an elevator backstage. Riding the elevator with decedent was Crimmins. While on the elevator, Crimmins said something to decedent which prompted her to slap him. When the elevator stopped on the second floor, both decedent and Crimmins exited and Crimmins ordered decedent to walk with him to a rear stairwell where they descended approximately five flights to a subbasement level. There, Crimmins produced a hammer and, after decedent removed her clothes, attempted to rape her. Crimmins then directed decedent to get dressed and to begin walking upstairs to the roof. On the roof, Crimmins tied decedent up with a rope. Crimmins had started to leave when he noticed that decedent had freed her legs and was running away. He caught her and brought her back to the same spot and retied her feet. Crimmins then carried decedent to a ledge near an air conditioning fan, removed her shoes, cut off her clothing, gagged her, and laid her flat on her stomach on the ledge. Crimmins threw decedent's clothing and pocketbook down the side of the air conditioning shaft. As he was leaving, decedent again began to struggle to free herself, at which point Crimmins returned to where decedent was and kicked her off the ledge. Decedent died as a result of the injuries sustained in the fall.

In August 1980, the Met filed a C-2 "Employer's Report of Injury" form with the Workers' Compensation Board and the Board indexed a death claim in the matter. Thereafter, claimant entered a special appearance challenging the jurisdiction of the Board on the grounds that decedent was an independent contractor and not an employee of the Met, and that her assault and murder did not arise out of or occur in the course of any employment.

Claimant also commenced a wrongful death action against the Met in Supreme Court, New York County. This action was stayed pending a final determination of the workers' compensation case.

A hearing was held before a Workers' Compensation Law Judge which resulted in an award of death benefits based upon a finding that decedent was an employee of the Met and that the accident and death arose out of and in the course of her employment. Claimant appealed this decision to the Board. On appeal, the Board affirmed the award, based on its determination that an employment relationship existed and that the assault occurred in the course of decedent's employment and, therefore, is presumed to have arisen out of her employment (see, Workers' Compensation Law § 21). This appeal by claimant ensued.

Claimant contends that the Board's determination that an employer-employee relationship existed is not supported by substantial evidence. We disagree. There was evidence adduced that decedent was on the Met's payroll and that the usual withholding taxes were deducted from her earnings. The Met had also obligated itself to provide workers' compensation insurance for the orchestra members. Moreover, the evidence indicates that the Met exercised significant control over decedent's hours and the manner in which she was to perform. Although conflicting inferences could be drawn from the evidence, this court's review is limited to determining whether the record contains substantial evidence to support the Board's finding (see, Matter of Davison v. Holder, 137 A.D.2d 899, 900, 524 N.Y.S.2d 871), and we conclude that it does.

Claimant also contends that the Board erred in determining that decedent's death arose out of and occurred in the course of her employment. As to whether the assault occurred in the course of decedent's employment, the Board determined that decedent was on a break between performances at the time of the incident and that her activity in leaving the orchestra pit to locate Panov was reasonable and did not constitute a deviation from her employment. We are not persuaded that the Board's conclusion on this point was in any way improper (see, Matter of Richardson v. Fiedler Roofing, 112 A.D.2d 551, 491 N.Y.S.2d 489, affd 67 N.Y.2d 246, 502 N.Y.S.2d 125, 493 N.E.2d 228).

Having determined that the assault occurred "in the course of" decedent's employment, the Board relied on the presumption in favor of compensability (see, Workers' Compensation Law § 21) as the basis for its decision that the assault also "arose out of" the employment. The Board also stated in its decision that "[w]ere it not for the employment, she [decedent] would not have been in a position which became not only dangerous, but which ultimately became fatal". Claimant contends that this statement evidences that the Board utilized an erroneous "but for" standard in determining whether the assault arose out of the employment. In support of this contention, claimant relies on Matter of McCarter v. La Rock, 240 N.Y. 282, 284-285, 148 N.E. 523 and Matter of Scholtzhauer v. C & L Lunch Co., 233 N.Y. 12, 134 N.E. 701, which rejected such a broad view of workers' compensation coverage and required that a rational causal nexus exist between the employment and the injury. Recent decisions of the Court of Appeals demonstrate that this remains the operative standard in New York (see, e.g., Matter of Lemon v. New York City Tr. Auth., 72 N.Y.2d 324, 532 N.Y.S.2d 732, 528 N.E.2d 1205; Matter of Malacarne v. City of Yonkers Parking Auth., 41 N.Y.2d 189, 391 N.Y.S.2d 402, 359 N.E.2d 992).

In the context of assaults upon an employee, the causal link may be supplied by a work environment which increased the risk of attack (see, 1 Larson, Workmen's Compensation § 11.11[b] or a work-related...