Gay v. American Janitor Service

122 A.D.2d 402, 504 N.Y.S.2d 808, 1986 N.Y. App. Div. LEXIS 59716

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 17, 1986
• Status: Published

Opinion

— Mikoll, J.

Appeal from a decision of the Workers’ Compensation Board, filed March 28, 1985, which ruled that claimant sustained an accidental injury in the course of his employment.

Claimant was employed by American Janitor Service (American). As an accommodation to its employees, American regularly provided them transportation to and from their worksites. The employees were not compensated for time spent in transit, nor was there a contractual agreement between American and its employees guaranteeing transportation. While being transported to work one day in a vehicle owned by American, an accident occurred in which claimant was injured.

The decision of the Workers’ Compensation Board ruling that claimant’s injuries were sustained in the course of his employment should be affirmed. The Court of Appeals in Matter of Holcomb v Daily News (45 NY2d 602) held that workers’ compensation benefits may be awarded for a transportation-related injury where an employer, absent an express contractual duty to provide its employees transportation, knowingly acquiesces to a long-established and commonly occurring practice of its truck drivers transporting employees to work. The record supports the Board’s decision that such a common practice was established here and that the injury did occur during the course of employment.

Decision affirmed, without costs. Kane, J. P., Main, Casey, Mikoll and Yesawich, Jr., JJ., concur.