Claim of Ruiz v. Deldan Design, Inc.

Gibson, P. J. Appeal from r decision and award, contested solely on appellants’ denial of accident ailing out c,f and in the course of the employment. Claimant sustained at i dental injuries when he slipped and fell against the factory wall while j/kgüg, hand jail with coemployees, including his foreman, during their lunch peiirti. Tiere, was evidence that the employees played regularly or at least, as the foreiiiaii testified, “ Whenever they felt like it ”. The plant manager testified that tbe ball playing had been forbidden by a prohibitory sign and otherwise but coil ceded that he knew that the men continued to play during the lunch hour nevertheless and also admitted, in substance, that the foreman gave the men their orders. The board gave weight to the failure to enforce the rule and, also, to the foreman’s participation in the game and relied, further, on Matter of Brown v. United Services for Air (273 App. Div. 932, affd. 298 N. Y. 901). We find no basis for appellants’ assertion that Brown was weakened or overruled by Matter of Congdon v. Klett (307 N. Y. 218); and the award has ample support in those and later authorities. (See, e.g., Matter of Barrett v. Al Charyn, Inc., 13 A D 2d 863, affd. 11 N Y 2d 849; Matter of Montpetit v. Standard Shade Roller Corp., [775] 277 App. Div. 1066, mot. for lv. to app. den. 302 N. Y. 950; 1 Larson, Workmen’s Compensation Law, §§ 22.00, 22.11 [pp. 349-350]; § 22.12 [pp. 353, 354].) Contrary to appellants’ contention, the similar rules applied in the horseplay cases seem to us analogous and helpful. (See 1 Larson, op. cit., § 22.12, p. 354, n. 25.) Pursuing the analogy, it is interesting to note that in discussing Montpetit (supra,), Dean Larson said (op. cit., § 23.41, p. 387) that “the very fact of the warning established both the existence of the practice and the foreman’s knowledge of it.” Decision affirmed, with costs to the Workmen’s Compensation Board. Gibson, P. J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in a memorandum decision by Gibson, P. J.