Claim of Goldfine v. Barsol Cab Operating Co.

19 A.D.2d 672, 241 N.Y.S.2d 273, 1963 N.Y. App. Div. LEXIS 3474

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 27, 1963
• Status: Published

Opinion

Appeal by claimant from a decision of the Workmen’s Compensation Board which affirmed a Referee’s decision disallowing the claim on the ground the injury did not arise out of and in the course of employment. Claimant, a cab driver, was injured in a scuffle with another motorist following a “near” accident. The board noted in its memorandum of decision: “ There is evidence in the record indicating that the claimant initiated the altercation and that the claimant took himself out of the emplojment when he got out of his cab and assaulted the motorist.” We agree that there is substantial evidence in the record justifying this comment. The memorandum of decision recites further: “ The Board finds on the evidence that the claimant in getting out of the cab and initiating the altercation removed himself from the employment.” The case is very closely analogous to Matter of Adelstein v. Bellride Transp. Corp. (15 A D 2d 690, motion for leave to ¡appeal denied 11 N Y 2d 643). The cases principally relied upon by the claimant are cases where there was an affirmance of a finding by the board the other way. Moreover, in this case the board found “ the injury was occasioned by the claimant’s - wilful intention to injure the motorist ” (Workmen’s Compensation Law, § 10). There is substantial evidence to support the factual determination of the board. Decision unanimously affirmed, without costs. Present — Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, JJ.