Claim of Holcomb v. Daily News

Appellate Division of the Supreme Court of New York

Claim of Holcomb v. Daily News

60 A.D.2d 711, 400 N.Y.S.2d 591, 1977 N.Y. App. Div. LEXIS 14738

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 22, 1977

StatusPublished

This text of 60 A.D.2d 711 (Claim of Holcomb v. Daily News) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Claim of Holcomb v. Daily News, 60 A.D.2d 711, 400 N.Y.S.2d 591, 1977 N.Y. App. Div. LEXIS 14738 (N.Y. Ct. App. 1977).

Pincite

Opinion

Appeal from decisions of the Workmen’s Compensation Board, filed April 29, 1976, November 24, 1976 and June 29, 1977. This is a claim for death benefits. On September 19, 1974, at about 12:15 a.m., while decedent was walking to work, he hailed and was picked up by a coemployee who was driving a company truck. In some unexplained manner, decedent fell from the truck and was killed. The board determined that decedent’s accidental death arose out of and in the course of his employment. This appeal ensued. There is proof in the record that drivers regularly picked up fellow employees on their way to and from work and that supervisors and dispatchers were aware of this practice. There was conflicting testimony on this issue and the existence of a prohibitory rule pertaining to the transporting of coemployees. These were issues for the board to determine. There is, in our view, substantial evidence to sustain the board’s determination that it was common practice to pick up employees; that such was known by the employer; and that the employer was, in effect, providing transportation. Consequently, the accident was within the course of decedent’s employment, and the decision must be affirmed (1 Larson, Workmen’s Compensation Law, § 17.30). Decisions affirmed, with costs to the Workmen’s Compensation Board against the employer and its insurance carrier. Koreman, P. J., Greenblott, Sweeney, Mikoll and Herlihy, JJ., concur.

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Appeal from decisions of the Workmen’s Compensation Board, filed April 29, 1976, November 24, 1976 and June 29, 1977. This is a claim for death benefits. On September 19, 1974, at about 12:15 a.m., while decedent was walking to work, he hailed and was picked up by a coemployee who was driving a company truck. In some unexplained manner, decedent fell from the truck and was killed. The board determined that decedent’s accidental death arose out of and in the course of his employment. This appeal ensued. There is proof in the record that drivers regularly picked up fellow employees on their way to and from work and that supervisors and dispatchers were aware of this practice. There was conflicting testimony on this issue and the existence of a prohibitory rule pertaining to the transporting of coemployees. These were issues for the board to determine. There is, in our view, substantial evidence to sustain the board’s determination that it was common practice to pick up employees; that such was known by the employer; and that the employer was, in effect, providing transportation. Consequently, the accident was within the course of decedent’s employment, and the decision must be affirmed (1 Larson, Workmen’s Compensation Law, § 17.30). Decisions affirmed, with costs to the Workmen’s Compensation Board against the employer and its insurance carrier. Koreman, P. J., Greenblott, Sweeney, Mikoll and Herlihy, JJ., concur.

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Bluebook (online)

60 A.D.2d 711, 400 N.Y.S.2d 591, 1977 N.Y. App. Div. LEXIS 14738, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claim-of-holcomb-v-daily-news-nyappdiv-1977.