Claim of Ruiz v. Deldan Design, Inc.

Appellate Division of the Supreme Court of New York

Claim of Ruiz v. Deldan Design, Inc.

27 A.D.2d 774, 277 N.Y.S.2d 90, 1967 N.Y. App. Div. LEXIS 4895

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

DecidedFebruary 10, 1967

StatusPublished

Cited by1 cases

This text of 27 A.D.2d 774 (Claim of Ruiz v. Deldan Design, Inc.) 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 Ruiz v. Deldan Design, Inc., 27 A.D.2d 774, 277 N.Y.S.2d 90, 1967 N.Y. App. Div. LEXIS 4895 (N.Y. Ct. App. 1967).

Pincite

Opinion

Gibson, P. J.

Appeal from r decision and award, contested solely

on appellants’ denial of accident ailing out c,f and in the course of the employment. Claimant sustained at i dental injuries when he slipped and fell against the factory wall while j/kgüg, hand jail with coemployees, including his foreman, during their lunch peiirti. Tiere, was evidence that the employees played regularly or at least, as the foreiiiaii testified, “ Whenever they felt like it ”. The plant manager testified that tbe ball playing had been forbidden by a prohibitory sign and otherwise but coil ceded that he knew that the men continued to play during the lunch hour nevertheless and also admitted, in substance, that the foreman gave the men their orders. The board gave weight to the failure to enforce the rule and, also, to the foreman’s participation in the game and relied, further, on Matter of Brown v. United Services for Air (273 App. Div. 932, affd. 298 N. Y. 901). We find no basis for appellants’ assertion that Brown was weakened or overruled by Matter of Congdon v. Klett (307 N. Y. 218); and the award has ample support in those and later authorities. (See, e.g., Matter of Barrett v. Al Charyn, Inc., 13 A D 2d 863, affd. 11 N Y 2d 849; Matter of Montpetit v. Standard Shade Roller Corp., [775]*775277 App. Div. 1066, mot. for lv. to app. den. 302 N. Y. 950; 1 Larson, Workmen’s Compensation Law, §§ 22.00, 22.11 [pp. 349-350]; § 22.12 [pp. 353, 354].) Contrary to appellants’ contention, the similar rules applied in the horseplay cases seem to us analogous and helpful. (See 1 Larson, op. cit., § 22.12, p. 354, n. 25.) Pursuing the analogy, it is interesting to note that in discussing Montpetit (supra,), Dean Larson said (op. cit., § 23.41, p. 387) that “the very fact of the warning established both the existence of the practice and the foreman’s knowledge of it.” Decision affirmed, with costs to the Workmen’s Compensation Board. Gibson, P. J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in a memorandum decision by Gibson, P. J.

Free access — add to your briefcase to read the full text and ask questions with AI

Gibson, P. J.

Appeal from r decision and award, contested solely

on appellants’ denial of accident ailing out c,f and in the course of the employment. Claimant sustained at i dental injuries when he slipped and fell against the factory wall while j/kgüg, hand jail with coemployees, including his foreman, during their lunch peiirti. Tiere, was evidence that the employees played regularly or at least, as the foreiiiaii testified, “ Whenever they felt like it ”. The plant manager testified that tbe ball playing had been forbidden by a prohibitory sign and otherwise but coil ceded that he knew that the men continued to play during the lunch hour nevertheless and also admitted, in substance, that the foreman gave the men their orders. The board gave weight to the failure to enforce the rule and, also, to the foreman’s participation in the game and relied, further, on Matter of Brown v. United Services for Air (273 App. Div. 932, affd. 298 N. Y. 901). We find no basis for appellants’ assertion that Brown was weakened or overruled by Matter of Congdon v. Klett (307 N. Y. 218); and the award has ample support in those and later authorities. (See, e.g., Matter of Barrett v. Al Charyn, Inc., 13 A D 2d 863, affd. 11 N Y 2d 849; Matter of Montpetit v. Standard Shade Roller Corp., [775]*775277 App. Div. 1066, mot. for lv. to app. den. 302 N. Y. 950; 1 Larson, Workmen’s Compensation Law, §§ 22.00, 22.11 [pp. 349-350]; § 22.12 [pp. 353, 354].) Contrary to appellants’ contention, the similar rules applied in the horseplay cases seem to us analogous and helpful. (See 1 Larson, op. cit., § 22.12, p. 354, n. 25.) Pursuing the analogy, it is interesting to note that in discussing Montpetit (supra,), Dean Larson said (op. cit., § 23.41, p. 387) that “the very fact of the warning established both the existence of the practice and the foreman’s knowledge of it.” Decision affirmed, with costs to the Workmen’s Compensation Board. Gibson, P. J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in a memorandum decision by Gibson, P. J.

Cite This Page — Counsel Stack

Bluebook (online)

27 A.D.2d 774, 277 N.Y.S.2d 90, 1967 N.Y. App. Div. LEXIS 4895, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claim-of-ruiz-v-deldan-design-inc-nyappdiv-1967.

Opinion

Related

Cite This Page — Counsel Stack