Claim of Bletter v. Harcourt, Brace & World, Inc.

Reynolds, J.

(dissenting). The claimant’s fall while executing a dance step was purely personal act of the claimant and not in anyway attributable to the employment environment and thus the rationale of Matter of Kaplan v. Zodiac Watch Co. (20 N Y 2d 537) precludes an award here. I cannot agree with the majority’s position that the “personal act” concept is limited to “such matters as dressing, personal hygiene or personal comfort”. Moreover, as I interpret Kaplan it is highly significant whether the accident is some how “ work connected ” or “ could ' have as easily occured at his home or at any other place.” (Matter of Kaplan v. Zodiac Watch Co., supra, p. 540.) The reference to the “swiftly moving elevator” in the board’s decision is merely window dressing. There is no contention by anyone that the elevator had anything to do with the occurrence. I fail to find on the instant record any basis for holding that this accident could not just as easily have occurred “at home or any other place.” The majority’s attempt to rationalize that the board could find “environmental and work connected” factors present is specious. He could well have had the same happy thoughts which precipitated his dance at home or on the street. There is no showing that employment factors or. working conditions in anyway directly contributed to what occured and thus cases such as Matter of Sarriera v. Axel Electronics (25 A D 2d 592) and Matter of Ingraham v. Lane Constr. Corp. (285 App. Div. 572, affd. 309 N. Y. 899) are not apposite here. Nor is the present case analogous to the horse play cases because in each such case work connected factors are directly involved. (Cf. Matter of Johnson v. Loew's, Inc., 8 N Y 2d 757; Matter of Piateh v. Plymouth Rock Provision Co. 15 A D 2d 405). Accordingly, I would reverse and dismiss the claim.