Valenti v. Valenti
| Decision Date | 01 May 1967 |
| Citation | 28 A.D.2d 572,279 N.Y.S.2d 474 |
| Parties | Claim of Antoinette VALENTI, Respondent, v. Ralph VALENTI, doing business as Rafael's Restaurant et al., Appellants. Workmen's Compensation Board, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Walworth & Harding, Albany, for appellants (James C. Harding, Albany, of counsel).
Wager, Taylor, Howd & Brearton, Troy, for claimant-respondent (James Brearton, Troy, of counsel).
Louis J. Lefkowitz, Atty. Gen., for Workmen's Compensation Board (Morris N. Lissauer, New York City, of counsel).
Before GIBSON, P.J., and HERLIHY, AULISI, STALEY, and GABRIELLI, JJ.
Appeal by the employer and insurance carrier from two decisions of the Workmen's Compensation Board dated February 21, 1966 and July 27, 1966 which made an award of death benefits to the claimant, and which reformed the insurance carrier's compensation policy to cover the intent of the parties to the effect that the insured was Ralph Valenti, d/b/a Rafael's Restaurant, and which determined that the accidental death of Clarence Valenti arose out of and in the course of his employment.
On January 14, 1964, the claimant's decedent, Clarence Valenti, was employed as the manager of Rafael's Restaurant and, during the performance of his duties, was shot to death by an occupant of the restaurant, not an employee. The shooting occurred about 9:45 P.M. during a lull in the business operations because of a blizzard while the decedent and a group of employees were seated near the bar watching television. The appellants contend that the accident did not arise out of and in the course of employment, that the decedent was not an employee at the time of death, and that the Workmen's Compensation policy, in effect at the time, named the assured as Clarence Valenti, d/b/a Rafael's Restaurant.
The claimant's evidence established that Ralph Valenti acquired the restaurant in 1957 from the estate of an uncle, and received a restaurant liquor license in 1957 in his name, d/b/a Rafael's Restaurant, which license was in effect at the time of the accident. Ralph Valenti, as tenant, entered into a written lease on April 1, 1961 with his father, Clarence Valenti, as landlord, to lease the restaurant building, known as Rafael's Restaurant for a three year period commencing April 1, 1961. He maintained a bank account and signed checks bearing the name of Rafael's Restaurant, and secured burglary insurance and insurance under the Disability Benefits Law in his name, d/b/a Rafael's Restaurant. Prior to January 7, 1963 the Workmen's Compensation policy had been issued in the name of Ralph Valenti, but for the period from March 13, 1963 to March 13, 1964, when the Workmen's Compensation insurance was secured through a new and different agent, for some reason which neither the insurer nor the agent has explained, the name of the assured on the policy was stated as Clarence Valenti, d/b/a Rafael's Restaurant. The insurance agent, who secured the policy, testified that the intention was to insure the business, known as Rafael's Restaurant, and that the payments for the insurance premiums were by checks, all signed...
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Timperio v. Bronx-Lebanon Hosp.
...; Matter of Mintiks v. Metropolitan Opera Assn., Inc., 153 A.D.2d at 137–138, 550 N.Y.S.2d 143 ; compare Matter of Valenti v. Valenti, 28 A.D.2d 572, 572–573, 279 N.Y.S.2d 474 [1967] ). Accordingly, the Board's decision establishing the claim must be reversed. Lynch, J.P., Clark and Aarons,......
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Timperio v. Bronx-Lebanon Hosp.
... ... 649, 650 [2003]; Matter of Mintiks v Metropolitan Opera ... Assn., 153 A.D.2d at 137-138; compare Matter of ... Valenti v Valenti, 28 A.D.2d 572, 572-573 [1967]) ... Accordingly, the Board's decision establishing the claim ... must be reversed ... ...
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