Opinion
Argued October 16, 1986
Decided November 20, 1986
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department.
Nancy F. McKenna, Raymond C. Green, Carolyn B. Stevens and Debora A. Pitman for appellants.
Robert Abrams, Attorney-General (Theresa E. Wolinski, O. Peter Sherwood, Peter H. Schiff and Carlin Meyer of counsel), for Workers' Compensation Board, respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed, with costs, and the claim dismissed.
To be compensable under the provisions of the Workers' Compensation Law an injury must arise out of the employment, that is, it must be a natural incident of the work, and it must arise in the course of employment (Workers' Compensation Law § 10; Matter of Malacarne v City of Yonkers Parking Auth., 41 N.Y.2d 189, 193). Decedent's death while sleeping at home was caused when his wife accidentally shot him with his service revolver. Inasmuch as departmental regulations required that decedent keep the side arm with him during off-duty hours, claimant contends that the Board could reasonably award her benefits for the death occurring in the course of employment.
The death clearly arose out of the employment because the gun's presence in the house was dictated by the employer's regulations. However, it did not arise in the course of employment, because the injury was not received while the employee was performing the work for which he was employed (Matter of Malacarne v City of Yonkers Parking Auth., supra, p 193; Matter of Wilson v General Motors Corp., 298 N.Y. 468). An officer may be on duty 24 hours a day, in the broad sense of the term, and required to keep his service revolver with him at all times because of such an order, but to be compensable an injury caused by the revolver must also be sustained by the officer in the performance of his duty (see, Matter of Pucillo v Regan, 62 N.Y.2d 736, affg 98 A.D.2d 877; Matter of De Jesus v New York State Police, 95 A.D.2d 454; Matter of Sorli v Levitt, 77 A.D.2d 773; Peetz v Industrial Commn., 124 Ariz. 324, 604 P.2d 255; cf. Matter of Washington v New York City Hous. Auth., 24 N.Y.2d 912; Kelly v County of Nassau, 58 A.D.2d 681; Borough of Aldan v Workmen's Compensation Appeal Bd., 54 Pa. Commw. 622, 422 A.2d 733). Decedent in this case was sleeping, not performing police duties at the time of the accident. Accordingly, the claim must be dismissed.
Chief Judge WACHTLER and Judges MEYER, SIMONS, ALEXANDER and HANCOCK, JR., concur in memorandum; Judges KAYE and TITONE taking no part.
Order reversed, etc.