Claim of the Estate of Gaetano Mesi v. Ro-Siu Constr., Inc.

—Casey, J. Appeal from a decision of the Workers’ Compensation Board, filed February 27, 1985. Decedent was employed as a laborer at a construction site located near the waterfront. While waiting for a load of concrete to be delivered, decedent decided to go swimming, [877] apparently due to the heat. Decedent developed cramps and drowned. The Workers’ Compensation Board found that when decedent drowned, he was engaged in an activity which he had been instructed not to do, and that swimming was not part of or incidental to his employment. There is proof in the record that wash-up facilities were available to decedent and his co-workers, and that they had been instructed several times not to swim. Since the Board’s resolution of the factual issue of whether a particular activity is within the course of employment will be disturbed only if it is unsupported by substantial evidence (Matter of Commissioner of Taxation & Fin. v Fisher, 89 AD2d 664, 665), the Board’s decision herein must be affirmed. Decision affirmed, without costs. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur.