Opinion
June 19, 1967
Appeal by an employer and its insurance carrier from a decision awarding benefits for disability due to a laceration and cerebral concussion. Claimant, a baker, arrived for work at the employer's plant in a rural area at 6:30 A.M., parked his automobile near the garage doors leading into the plant and upon alighting was struck on the head by an unknown assailant and robbed of his wallet and ring. The employer's report fixed the site of the injury as upon the employment premises, as does the carrier's brief, which also concedes that the assault was by an unknown person with the object of robbery; and there is no claim of a personal or private animus unconnected with the employment and no contention that the incident did not occur within the time and space limits of the employment. Appellants' sole contention, nevertheless, is that the "accident did not arise out of and during the course of the employment", this resting upon their assertion that claimant had to demonstrate a risk attributable to "the character of his job" or associated with "the environment in which he worked". In each of these respects, the basis for an award in this case seems as strong as, and, indeed, stronger than that which existed in the case of the apartment house superintendent attacked and robbed while attending to a faulty boiler, the board's disallowance of the claim having been reversed by the Appellate Division, whose order was later unanimously affirmed. ( Matter of Toro v. 1700 First Ave. Corp., 16 A.D.2d 852, affd. 12 N.Y.2d 1001.) There, the employee was assaulted between 9:00 and 10:00 P.M. in the basement of the building in which he resided ( 12 N.Y.2d 1001, 1002); here, the assault occurred at the somewhat early hour of 6:30 A.M. in a remote and, at that hour, unfrequented area in which claimant did not have whatever protection, physical or psychological, was afforded the employee in Toro by the building. Even closer to this case is Matter of Rosmuth v. American Radiator Co. ( 201 App. Div. 207) which sustained an award to an employee, a laborer, who was assaulted and robbed at night while drawing cinders from the plant to a dump about 200 feet away. (See, also, 1 Larson, Workmen's Compensation Law, § 11.11 [b], pp. 135, 137.) Decision affirmed, with costs to the Workmen's Compensation Board. Gibson, P.J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gibson, P.J.