36 A.D.2d 543 (1971)

In the Matter of the Claim of Nathan Notowitz, Respondent, v. Rose Towel & Linen Supply Company et al., Appellants. Workmen's Compensation Board, Respondent

Appellate Division of the Supreme Court of the State of New York, Third Department.

January 6, 1971

The record reveals that upon parking his employer's truck for the night in the company's private garage, claimant, a laundry route salesman, noticed three suspicious looking men who were still present when he stepped out of the garage to leave for home. He "figured [his] best bet was to start running". However, they caught up to him and assaulted him about a block away from the garage, causing the injuries for which he has been awarded compensation benefits. The board found that a hazard was constituted which did not permit claimant a safe egress from the employment premises. Under the circumstances of this case, the risks attendant to employment were for the board to determine under its fact-finding power (Matter of Patti v. Republic Aviation Corp., 20 A.D.2d 939; Matter of McGrinder v. Sullivan, 290 N.Y. 11, 12). Distance from the place where the three men began their pursuit is not the determining factor. (Matter of Feuchtbaum v. Simwitz Bros. Trucking Co., 28 A.D.2d 575.) The issue is whether the continuity of cause was so combined with the contiguity of time and space that the assault from origin to end should be taken to be one entire transaction. (See Matter of Field v. Charmette Knitted Fabric Co., 245 N.Y. 139.) Here the board has made a factual determination and our review is limited. (Matter of McGrinder v. Sullivan, supra, p. 12). We find there is substantial evidence to sustain its determination in favor of claimant.

Decisions affirmed, with costs to the Workmen's Compensation Board.

Herlihy, P. J., dissents and votes to reverse and dismiss the claim in the following memorandum:

The claimant testified that on January 10, 1968 at about 5:05 P.M., while driving a truck into his employer's garage, he "seen three fellows looking kind of suspicious. They followed me, and after that I start running, and then they caught up to me and they beat me up". He further testified that they caught up to him about "a block" away from the garage and that they said to claimant "What kind of remark did you make?" The board found that these facts "constituted a hazard which did not permit him safe egress from the employment premises". The record establishes that the claimant was paid disability benefits. It has been stated in prior decisions that there must be a line of demarcation between what is and what is not a compensable accident. In my opinion, the above facts do not constitute such an accident as a matter of law, but rather demonstrate a hazard of the street to which the public generally is exposed, and that the claimant's injuries were not caused either in his employment or arose out of his employment. To hold otherwise is to further extend coverage beyond what seems to be a reasonable or rational intention of the law and to be substituting Workmen's Compensation benefits for payments of disability benefits. The decisions relied upon by the majority are neither convincing nor controlling. Matter of McGrinder v. Sullivan (264 App. Div. 640, revd. 290 N.Y. 11) involved a bartender who ejected a patron who thereafter assaulted the bartender on his way home. Matter of Feuchtbaum v. Simwitz Bros. Trucking Co. (28 A.D.2d 575) involved a union dispute among employees. Matter of Field v. Charmette Knitted Fabric Co. (245 N.Y. 139) concerned an argument between fellow employees on the premises, followed by injuries sustained as one of the participants left the premises. As the Court of Appeals stated at page 142, "The quarrel outside of the mill was merely a continuation or extension of the quarrel begun within". The injuries sustained by the claimant were not occasioned within the precincts of his employment and, therefore, are the result of a natural or normal risk and the decision of the board should be reversed and the claim dismissed.


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