Smithline v. Ghessi

Appellate Division of the Supreme Court of New York

Smithline v. Ghessi

25 A.D.2d 841, 270 N.Y.S.2d 103, 1966 N.Y. App. Div. LEXIS 4192

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

DecidedMay 19, 1966

StatusPublished

Cited by3 cases

This text of 25 A.D.2d 841 (Smithline v. Ghessi) 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

Smithline v. Ghessi, 25 A.D.2d 841, 270 N.Y.S.2d 103, 1966 N.Y. App. Div. LEXIS 4192 (N.Y. Ct. App. 1966).

Pincite

Opinion

Order entered January 18, 1966, granting plaintiff’s motion to dismiss affirmative defenses in defendant’s answer, unanimously reversed, on the law, with $50 costs and disbursements to appellant, and the motion denied. In this personal injury action by an employee of Nestle Co., Inc., against a fellow employee, the latter has pleaded affirmative defenses based on subdivision 6 of section 29 of the Workmen’s Compensation Law. The Nestle Company maintains a parking lot adjacent to its plant in White Plains for the convenience of its employees. On the date of the accident plaintiff had driven to work and left her car in the parking lot. She finished her day’s work at 5:00 p.m. and proceeded to the parking lot where, at about 5:20 p.m., she was struck by a car owned and operated by defendant, who was also on the way home from work. Similar circumstances have been considered in a number of decisions (Ritornato v. Schuth, 278 App. Div. 996; Matter of Kwapich v. Aluminum Co. of America, 282 App. Div. 972; Roberts v. Gagnon, 1 A D 2d 297; Kunze v. Jones, 6 A D 2d 888, affd. 8 N Y 2d 1152; Chadwick v. Clark, 19 A D 2d 679; Pantolo v. Lane, 185 Misc. 221). Under their authority it must be held that the parties were acting in the course of their employment at the time of the accident, and that plaintiff is limited to workmen’s compensation benefits. The decisions on which plaintiff principally relies do not justify a different conclusion. In Miano v. Schneider (4 N Y 2d 732) the accident occurred while the employees, on their way to a job site to begin the day’s work, were riding on a public highway. In D’Agostino v. Wagenaar (183 Misc. 184, affd. 268 App. Div. 912, mot. for lv. to app. den. 294 N. Y. 640), the defendant lived on the employer’s premises and his workday had ended some six hours before his car struck the plaintiff. Settle order on notice.

Concur — Botein, P. J., McNally, Stevens and Steuer, JJ.

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Order entered January 18, 1966, granting plaintiff’s motion to dismiss affirmative defenses in defendant’s answer, unanimously reversed, on the law, with $50 costs and disbursements to appellant, and the motion denied. In this personal injury action by an employee of Nestle Co., Inc., against a fellow employee, the latter has pleaded affirmative defenses based on subdivision 6 of section 29 of the Workmen’s Compensation Law. The Nestle Company maintains a parking lot adjacent to its plant in White Plains for the convenience of its employees. On the date of the accident plaintiff had driven to work and left her car in the parking lot. She finished her day’s work at 5:00 p.m. and proceeded to the parking lot where, at about 5:20 p.m., she was struck by a car owned and operated by defendant, who was also on the way home from work. Similar circumstances have been considered in a number of decisions (Ritornato v. Schuth, 278 App. Div. 996; Matter of Kwapich v. Aluminum Co. of America, 282 App. Div. 972; Roberts v. Gagnon, 1 A D 2d 297; Kunze v. Jones, 6 A D 2d 888, affd. 8 N Y 2d 1152; Chadwick v. Clark, 19 A D 2d 679; Pantolo v. Lane, 185 Misc. 221). Under their authority it must be held that the parties were acting in the course of their employment at the time of the accident, and that plaintiff is limited to workmen’s compensation benefits. The decisions on which plaintiff principally relies do not justify a different conclusion. In Miano v. Schneider (4 N Y 2d 732) the accident occurred while the employees, on their way to a job site to begin the day’s work, were riding on a public highway. In D’Agostino v. Wagenaar (183 Misc. 184, affd. 268 App. Div. 912, mot. for lv. to app. den. 294 N. Y. 640), the defendant lived on the employer’s premises and his workday had ended some six hours before his car struck the plaintiff. Settle order on notice.

Concur — Botein, P. J., McNally, Stevens and Steuer, JJ.

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25 A.D.2d 841, 270 N.Y.S.2d 103, 1966 N.Y. App. Div. LEXIS 4192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smithline-v-ghessi-nyappdiv-1966.

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