Claim of Dorosz v. Green & Seifter

Peters, J.

(dissenting). Fully recognizing that “ ‘whether a claimant’s injury arose in the course of employment is a factual one and [that] the Board’s resolution must be upheld if supported by substantial evidence’ ” (Matter of Eddy v Rochester-Genesee Regional Transp. Auth., 248 AD2d 769, 770, quoting Matter of Farnan v New York State Dept. of Social Servs., 187 AD2d 864), we fail to find such quantum of evidence presented here which supports the conclusion of the Workers’ Compensation Board that decedent was not fully participating in employment-related activities at the time of his death.

Unlike the cases cited by the majority wherein the claimants were found not to be entitled to benefits pursuant to Workers’ Compensation Law § 10 (1) due to their participation in clearly recreational activities with their co-workers (see, Matter of Farnan v New York State Dept. of Social Servs., 187 AD2d 864, supra; Matter of De Carr v New York State Workers’ Compensation Bd., 151 AD2d 935), the undisputed evidence here demonstrates that as part of decedent’s employment, he regularly met with his clients after typical office hours, and that with respect to this particular client, he had a standing *934appointment on the same evening each week which was scheduled for the predominate purpose of discussing the client’s business needs. The record remained clear that decedent never bowled other than on this evening with this particular client and that the client saved all business matters for discussion during these times. It is upon this basis that we must conclude that there exists no demonstrative evidence indicating that decedent’s activity was anything other than a work-related activity from which the employer “ ‘derive [d] substantial direct benefit * * * beyond the intangible value of improvement in employee health and morale’ ” (Matter of Bashwinger v Cath-Fran Constr. Co., 200 AD2d 791, 792, lv denied 83 NY2d 757, quoting Matter of Congdon v Klett, 307 NY 218, 222).

Accordingly, we would reverse the Board’s decision.

Spain, JJ., concurs. Ordered that the decision is affirmed, without costs.