LeFever v. Stultz

— Order, Supreme Court, New York County (Ryp, J.), entered January 13,1983, which, inter alia, granted plaintiffs’ motion to strike defendant Ralph Stultz’ defense of the Workers’ Compensation Law, modified, on the law, to the extent of denying the plaintiffs’ motion, the defense is reinstated, and otherwise affirmed, without costs. In 1977, pláintiff Kleon M. LeFever (Kleon) and defendant Ralph Stultz (Stultz) were employed as assistant general counsel in the corporate law department of North American Philips Corporation. On January 6, 1977, concededly, after lunch, Stultz returned to work intoxicated. Kleon attempted to sober Stultz up by walking Stultz around the library room, located on the corporation’s premises. Suddenly, Stultz lost his balance and he tumbled to the floor, dragging Kleon with him. In falling, Kleon severely injured his right eye, when he struck it on the bottom shelf of a bookcase. Upon the basis that he was injured by a fellow employee during working hours, on his employer’s premises, Kleon received workers’ compensation benefits. In 1978 plaintiffs instituted suit against Stultz and other defendants (who had sold Stultz the alcohol and are not involved in this appeal). Stultz’ answer contained the defense of the Workers’ Compensation Law. After Kleon and Stultz submitted to examinations before trial, plaintiffs moved to strike the Workers’ Compensation Law defense and Special Term granted this motion. We find that Special Term erred. Our review of this record leads us to conclude that there is a triable issue of fact, as to whether defendant was acting in the course of his employment when he accidentally fell, even though he was intoxicated (Maines v Cronomer Val. Fire Dept., 50 NY2d 535, 543). Thus, defendant’s defense is viable. Concur — Ross, J. P., Bloom, Fein and Alexander, JJ.