From Casetext: Smarter Legal Research

Matter of Dubnoff v. Feathers Sportswear, Inc.

Appellate Division of the Supreme Court of New York, Third Department
Oct 14, 1982
90 A.D.2d 607 (N.Y. App. Div. 1982)

Opinion

October 14, 1982

Appeal from decisions of the Workers' Compensation Board, filed November 20, 1979 and April 29, 1981.


Appellants, the employer and its carrier, seek reversal of an award made by the Workers' Compensation Board (board) to the claimant widow. They claim the board's findings of an employer-employee relationship and of accidental injury and causally related death are not sustained by substantial evidence. There was testimony before the board that decedent worked as a sales manager at the employer's premises in return for a fixed weekly salary, that he labored exclusively for the employer, was prohibited from working for a competitor, and that the employer retained the privilege of discharging decedent if his performance proved unsatisfactory. On these facts, it was within the board's province to conclude that an employer-employee relationship existed ( Matter of Brown v. Time, Inc., 71 A.D.2d 774; Matter of Wittenstein v. Fugazy Cont. Corp., 59 A.D.2d 249, mot for lv to app den 43 N.Y.2d 648). Appellants' other argument is similarly devoid of merit. There was medical testimony that decedent's myocardial infarction, which resulted in his injury and death two months later, was precipitated by a furious argument had with his supervisor while at work. Such an injury may be found to be accidental under the Workers' Compensation Law ( Matter of Seymour v. Sokolneck, 34 A.D.2d 1073). Since appellants failed to urge upon the board their contention that there is no substantial evidence that an argument truly occurred, we are unwilling to entertain that suggestion now ( Matter of Middleton v. Coxsackie Correctional Facility, 38 N.Y.2d 130). Decisions affirmed, with costs to the Workers' Compensation Board. Kane, J.P., Casey, Yesawich, Jr., Weiss and Levine, JJ., concur.


Summaries of

Matter of Dubnoff v. Feathers Sportswear, Inc.

Appellate Division of the Supreme Court of New York, Third Department
Oct 14, 1982
90 A.D.2d 607 (N.Y. App. Div. 1982)
Case details for

Matter of Dubnoff v. Feathers Sportswear, Inc.

Case Details

Full title:In the Matter of the Claim of ROSALYN DUBNOFF, Respondent, v. FEATHERS…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Oct 14, 1982

Citations

90 A.D.2d 607 (N.Y. App. Div. 1982)

Citing Cases

Matter of O'Malley v. N.Y. City Transit Auth

Similarly, the employer's remaining contentions were either not raised before the Board or were raised for…

Matter of Leone v. Patrick Leone Sons

The following day, claimant was admitted to the coronary care unit of an area hospital where he remained for…