O'Connor v. Serge Elevator Co.

Murphy, P. J., and Kupferman, J., dissent in part in a memorandum by Kupferman, J., as follows:

We dissent in part and would remand as well for a new trial on the issue of contractual indemnification on the cross claim of the . defendant, K. W. Construction Corp., against defendant, A & M Wallboard, Inc. The majority indicates that, because the plaintiff was on his lunch break and not at his work area, the third-party defendant-respondent, A & M Wallboard, Inc., could not be deemed responsible. However, it is well settled that an employee on his lunch break, in the general physical area of his employment, is still subject to the employment relationship. (Matter of Bollard v Engel, 278 NY 463 [Per Curiam]; Matter of Domres v Syracuse Safe Co., 240 NY 611.)