Claim of Torosian v. Nash Cab, Inc.

27 A.D.2d 767, 277 N.Y.S.2d 112, 1967 N.Y. App. Div. LEXIS 4883

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 10, 1967
• Status: Published

Opinion

Aulisi, J.

Appeal from a decision of the Workmen’s Compensation Board which found that claimant’s accidental injury arose out of and in the course of employment. Claimant was a taxi driver in Albany, Hew Tork. Shortly after midnight on August 8,1964 he discharged a passenger on Madison Avenue. Claimant was observed sitting in his cab arguing with said passenger about “ a fare ” or money. As the dispute became louder, claimant left the taxi and continued the argument on the sidewalk during which he opened the trunk and took out a tire jack. He returned to the sidewalk and continued the argument but at no time did he make any threatening motions. After arguing approximately one-half minute more, the passenger raised his right hand and struck claimant knocking him to the ground severely injuring him. Claimant remembers nothing of the incident and the above recapitulation is based upon the testimony of two disinterested eyewitnesses. The board found that the injury arose from a dispute over a fare and that the accident arose out of and in the course of employment. Appellant employer disputes this determination on the grounds that claimant was struck in self-defense and that he was not within the scope of his employment. As the summary of the testimony clearly indicates, there is substantial evidence to sustain the board’s conclusions. 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 Aulisi, J.