Claim of Brienza v. Le Chase Construction Corp.

Herlihy, J. When the matter was first before the board, it was remitted to the Referee to give the parties an opportunity of producing proof as to whether or not the site of the alleged accident occurred on a city street. Thereafter the Referee found in favor of the claimant but the board reversed and held, in part, as follows: “ In the absence of proof that the employer had failed to maintain a safe egress and ingress, and in view of the proof now submitted that the accident occurred on a public street, the Board finds that the accident did not arise out of and in the course of employment.” The proof showed that the City of Rochester had accepted Iona Street as a public street. The pictures of the alleged street in evidence are of great import in this case. An examination of them discloses that this is not a public street in the generally accepted concept of such a street. Rather it gives the appearance of a common alley running between the rear of buildings from one improved street to another. There was neither an improved road bed, curbs, sidewalk nor other evidence of street development, and equipment, material and debris of the employer and others were stored within the street line making passage difficult and, as testified to, at times impassable. There was further evidence that one of the property owners used dirt and gravel to fill in the varied assortment of holes in the roadway. There were no signs as such designating the street nor were there any street lights. Under such circumstances, the mere designation of Iona Street as a public street should not be sufficient reason to deny the claimant his right to compensation. It further appears undisputed that the use of this street was the only means of egress and ingress to the claimant’s place of employment and the immediate area near where he fell was a waiting area for the employees arriving for work before the gate or entrance to their place of employment was unlocked. The employer’s report of injury stated that the accident occurred on the “Job Site ”. It could thus be determined that this driveway or entranceway was within the employer’s precinct and within the periphery of claimant’s employment. The board made no such finding but rather determined that there was ‘ ‘ absence of proof that the employer had failed to maintain a safe egress and ingress ”. [85] We cannot say, as a matter of law, that an accident on a public sidewalk or public road per so negates the right to compensation. It depends upon the particular circumstances in each claim and here it would be a miscarriage of justice to hold that an unimproved, undeveloped street, and the only means of access to the place of employment, is sufficient fulcrum to deny compensation to this claimant premised on a finding that the accident occurred on a public street and did not arise out of and in the course of his employment. (See Matter of Moskowitz v. Granata, 9 A D 2d 310; Matter of Rosenwasser v. Lanes Lake Success, 9 A D 2d 1001; Matter of Carrasquilla v. Penn Akron Co., 10 A D 2d 135; Matter of Spennacchio v. Delco Appliance Division, General Motors Corp., 11 A D 2d 857.) The decision of the Workmen’s Compensation Board should be reversed and the matter remitted for its further consideration, with costs to the claimant-appellant.