Claim of Di Perri v. Boys Brotherhood Republic of New York, Inc.

Herlihy, P. J. (dissenting).

The claimant, a New York City resident, was hired by the New York City employer in January of 1968 to work at a summer camp maintained by the employer outside of New York City during the summer months of 1968. The accident at issue in this case occurred while the claimant was residing at the summer camp as required by the employer and as the claimant was engaged in recreational activity during his free time upon premises not owned by the employer.

It appears that the majority interpretation of the precedents as precluding a recovery in this case because the accident occurred off the premises of the employer and/or because it was a personal activity is too restrictive. The personal activity found uncompensable as a matter of law in Matter of Kaplan v. Zodiac Watch Co. (20 N Y 2d 537) was of such a purely personal nature as to be in no way realistically arising out of the employment and the injuries resulted solely from the performance of the activity. (Cf. Matter of Paduano v. New York State Workmen’s Compensation Bd., 25 N Y 2d 669.) It is well established that seeking recreation by an outside employee or by "an employee required to reside on the employer’s premises is not a purely personal activity as a matter of law within the meaning of the Kaplan or Paduano cases. (See Matter of Leonard v. Peoples Camp Corp., 9 A D 2d 420, affd. 9 N Y 2d 652.)

Most notably, neither the majority nor the appellant has cited a single case in which an employee required to temporarily reside upon his employer’s premises was denied a recovery solely because the accident occurred off the employer’s premises. It is not difficult to assume facts where a camp employee off the employer’s premises would ordinarily be entitled to compensation for accidental injuries.

The board found, inter alia, that the use of the recreational facilities at the place where the accident occurred was permitted by the employer. The record, establishes that the claimant had to have permission from the employer to leave the employer’s premises and further that the employer was expected by the owner of the premises where the accident occurred to discipline such boys as misbehaved while using the furnished facilities. It appears that the control of the employer over employees such as the claimant was such as to include the power to forbid the claimant to use the facilities of the neighboring camp. Upon the present record the recreational facilities were in fact an incidental adjunct to the employer’s own facilities because of the habitual permitted use of the nonowned facilities.

*321If the claimant were injured while utilizing the same facilities upon his employer’s premises he would have been considered as being in the course of his employment in the present case. There is no difference in reality between being on the employer’s premises or off them in the present practical situation. To deny a recovery herein is merely an artificial distinction without substance as vis-a-vis an accident while engaging in recreation on the employer’s premises. (Cf. Matter of Dow v. Collins, 22 A D 2d 250, mot. for lv. to app. den. 15 N Y 2d 487.)

In any event, it appears that the present situation would fall within the class of cases concerning a claimant who is required by his employment to temporarily sojourn away from home (Matter of Leonard v. Peoples Camp Corp., 9 A D 2d 420, 422, affd. 9 N Y 2d 652; Matter of Eixman v. Rothman’s East Norwich Inn, 6 A D 2d 911).

There was substantial evidence to sustain the board’s factual findings.

The employer’s contention that the employment was casual in nature within the meaning of subdivision 3 (par. a, subpar. [4]) of section 132 of the Labor Law is without merit.

The decision should be affirmed.

Reynolds and Sweeney, JJ., concur with Simons, J.; Herlihy, P. J., dissents and votes to affirm in an opinion in which Greenblott, J., concurs.

Decision reversed and claim dismissed, with costs to appellant against the Workmen’s Compensation Board.