Neacosia v. New York Power Authority

• Decision Date: 23 June 1994
• Citation: 205 A.D.2d 945,613 N.Y.S.2d 952
• Parties: In the Matter of the Claim of Michael NEACOSIA, Respondent, v. NEW YORK POWER AUTHORITY et al., Appellants. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 952

613 N.Y.S.2d 952

205 A.D.2d 945

In the Matter of the Claim of Michael NEACOSIA, Respondent, v. NEW YORK POWER AUTHORITY et al., Appellants Workers' Compensation Board, Respondent.

Supreme Court, Appellate Division,

Third Department.

June 23, 1994.

Raymond C. Green, State Ins. Fund (James J. Fehrer, of counsel), New York City, for appellants.

Hancock & Estabrook (Robert A. Small, of counsel), Syracuse, for Michael Neacosia, respondent.

G. Oliver Koppell, Atty. Gen. (Iris A. Steel, of counsel), New York City, for Workers' Compensation Bd., respondent.

Before MIKOLL, J.P., and CREW, WHITE, YESAWICH and PETERS, JJ.

CREW, Justice.

Appeal from a decision of the Workers' Compensation Board, filed January 12, 1993, which ruled that claimant sustained an accidental injury arising out of and in the course of his employment and awarded workers' compensation benefits.

On May 17, 1991, claimant sustained serious injuries as the result of a motor vehicle accident occurring in the Town of Hannibal, Oswego County. The record indicates that claimant was employed by the New York Power Authority as a nuclear security guard and was required to wear a uniform provided by the employer. ¹ On the day of the accident, claimant finished work at approximately 1:00 P.M. and thereafter proceeded to drop off his uniforms at a drycleaning establishment where the employer maintained an account. ² A receipt issued by the cleaning establishment shows that claimant dropped off his uniforms at 1:28 P.M. The accident occurred at approximately 2:22 P.M. on State Route 104, which was the direct route from claimant's place of employment to his residence. The record indicates that the distance between the cleaning establishment and the accident site could have been traveled in approximately 15 minutes and, hence, there was an unexplained period of time of approximately 40 minutes between the time claimant apparently left the cleaning establishment and the time the accident occurred. Based upon these facts, the Workers' Compensation Board ultimately concluded that claimant's accident arose out of and in the course of his employment and awarded benefits. This appeal by the employer followed.

"While the general rule is that risks of travel to and from work are not incidents of employment * * * an exception exists for employees directed to perform a 'special errand' or service for their employer * * * " (Matter of Junium v. Bazzini Co., 86 A.D.2d 690, 446 N.Y.S.2d 520 [citations omitted]; see generally, Matter of Gray v. Lyons Transp., 179 A.D.2d 985, 986, 579 N.Y.S.2d 213; Matter of Bennett v. G.O. Dairies, 114 A.D.2d 574, 575, 494 N.Y.S.2d 189). "Coverage for employees on special errands is 'portal-to-portal' " (Matter of Oehley v. Syracuse Boys Club, 151 A.D.2d 825, 827, 542 N.Y.S.2d 799, quoting Matter of Charak v. Leddy, 23 A.D.2d 437, 438, 261 N.Y.S.2d 486), i.e., the employee is deemed to be in the course of his or her employment until the errand is completed unless there is a substantial deviation from it (see, id.; see also, Matter of Teles v. Westbury S & S Concrete, 50 A.D.2d 954, 954-955, 375 N.Y.S.2d 668, aff'd 40 N.Y.2d 902, 389 N.Y.S.2d 366, 357 N.E.2d 1021). Application of the special errand exception hinges upon "whether the special service is suitable and 'sufficiently work related under the circumstances' " (Matter of Gray v. Lyons Transp., supra, 179 A.D.2d at 986, 579 N.Y.S.2d 213, quoting Matter of Richardson v. Fiedler Roofing, 67 N.Y.2d 246, 249, 502 N.Y.S.2d 125, 493 N.E.2d 228; see, Matter of Oehley v. Syracuse Boys Club, supra, 151 A.D.2d at 827, 542 N.Y.S.2d 799).

Here, the Board essentially found that claimant was on a special errand at the time the accident occurred and awarded claimant benefits on that basis. In our view, however, the record before us simply does not contain substantial evidence to support the Board's finding in this regard. Even assuming, as the Board contends, that it may be inferred from the stipulated facts that the employer "derived significant benefit from the polished appearance of its guards", there is no indication in the record that claimant was required to have his uniforms drycleaned (compare, Matter of Gray v. Lyons Transp., 179 A.D.2d 985, 579 N.Y.S.2d 213, supra [claimant injured following employer's request that claimant report to work early]; Matter of Pearson v. New York City Tr. Auth., 146 A.D.2d 849, 536 N.Y.S.2d 255 [claimant directed by employer to report to medical clinic and injured en route]; Matter of Junium v. Bazzini Co., 86 A.D.2d 690, 446 N.Y.S.2d 520, supra [claimant's decedent directed by superior to attend meeting and suffered heart attack]; Matter of Augustine v. New York State Elmira Correctional Facility, 64 A.D.2d 340, 410 N.Y.S.2d 141 [claimant injured while returning from medical examination required by retirement system] or, having elected to do so, was compelled to use a particular cleaning establishment for that purpose. As noted previously, although claimant apparently was required to properly maintain his uniforms, the uniforms provided by the employer were machine washable and, hence, drycleaning was but one of the options available to claimant (compare, Matter of Watson v. American Can Co., 23 A.D.2d 423, 261 N.Y.S.2d 306, aff'd 18 N.Y.2d 758, 274 N.Y.S.2d 683, 221 N.E.2d 463; Matter of Goldberg v. Gold Medal Farms, 18 A.D.2d 951, 237 N.Y.S.2d 656). In short, although it may be inferred from the record that claimant was encouraged to avail himself of the drycleaning option, there is nothing in the record to suggest that he was required to do so (cf., Matter of Costa v. New York State Workmen's Compensation Bd., 34 A.D.2d 585, 308 N.Y.S.2d 93). Accordingly, the Board's decision must be reversed.

ORDERED that the decision is reversed, without costs, and claim dismissed.

WHITE and YESAWICH, concur.

MIKOLL, Justice Presiding (dissenting).

We respectfully dissent. We would affirm the finding of the Workers' Compensation Board based on the stipulated facts on which...