State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 17, 2016 521899 

________________________________

In the Matter of the Claim of

CAL PITTNER,

Claimant,

and

FRANCESCA BECCARI, MEMORANDUM AND ORDER

Appellant,

v

ST. GOBAIN CORPORATION et al.,

Respondents.

WORKERS' COMPENSATION BOARD,

Respondent.

________________________________

Calendar Date: October 17, 2016

Before: Egan Jr., J.P., Rose, Clark, Mulvey and Aarons, JJ.

__________

William Chen, Williamsville, for appellant.

Hamberger & Weiss, Buffalo (Renee E. Heitger of counsel),

for St. Gobain Corporation and another, respondents.

__________

Mulvey, J.

Appeal from a decision of the Workers' Compensation Board

filed January 7, 2015, which ruled that decedent's death did not

arise out of and in the course of his employment and disallowed

the claim for workers' compensation death benefits.

On November 3, 2010, David Pittner (hereinafter decedent),

who worked for the St. Gobain Corporation as a Director of Human
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Resources, died inside of his apartment located in Erie County. 

Thereafter, a claim for workers' compensation death benefits was

filed. Following hearings, a Workers' Compensation Law Judge

found that decedent's death arose out of and in the course of his

employment while traveling for his employer. Upon administrative

review, a majority decision of the Workers' Compensation Board

affirmed; one Board panel member dissented. The employer

requested mandatory full Board review of the Board's decision. 

Following such review, the full Board, finding that decedent's

death did not arise out of and in the course of his employment,

reversed the decision of the Board panel and disallowed the claim

for death benefits. This appeal ensued. 

We affirm. It is well settled that, although an employee's

death is compensable under the Workers' Compensation Law if it

arises out of and in the course of employment, injuries sustained

during travel to and from the place of employment are not

compensable (see Matter of Neacosia v New York Power Auth., 85

NY2d 471, 474-475 [1995]; Matter of Bednarek v Caring

Professionals Inc., 111 AD3d 997, 997 [2013]; Matter of Duffy v

Taconic Correctional Facility, 41 AD3d 923, 924 [2007]). 

Exceptions to this rule, however, exist (see Matter of Neacosia v

New York Power Auth., 85 NY2d at 475). Relevant here, "injuries

sustained by an employee while traveling in the business of his

employer [are] compensable if they occurred while the employee

was actually acting in furtherance of his employer's business"

(Matter of Capizzi v Southern Dist. Reporters, 61 NY2d 50, 52

[1984]) or if the "employee's home, because he or she so

customarily works there, has achieved the status of an additional

place of employment" (Matter of Kirchgaessner v Alliance Capital

Mgt. Corp., 39 AD3d 1096, 1097 [2007]; Matter of Neacosia v New

York Power Auth., 85 NY2d at 475; Matter of Bobinis v State Ins.

Fund, 235 AD2d 955, 956 [1997]; Matter of McRae v Eagan Real

Estate, 170 AD2d 900, 901 [1991]).1 

1 Inasmuch as decedent did not die while in transit to a

work site or location, the outside-employee exception to the

general rule that injuries sustained during travel to and from

the place of employment are not compensable is not applicable

here (see Matter of Bednarek v Caring Professionals Inc., 111
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Decedent maintained a primary residence in Arizona as well

as a residence in Worcester, Massachusetts. Upon accepting a new

position with his employer in 2009, decedent continued to

maintain his residence in Arizona but left his residence in

Worcester to relocate to Erie County, where he leased an

apartment that he furnished as a private residence. When he

stayed at this apartment, decedent was neither reimbursed for his

living expenses nor for the cost of the apartment. While

decedent's job responsibilities required him to travel often to

other locations, the record evidence reflects that he spent

approximately half of his time in Erie County, which afforded him

the opportunity to visit his son who also lived in western New

York. Decedent's son also maintained a bedroom in the apartment

where he stayed when he visited decedent in Erie County. 

Significantly, at the time of decedent's death, he had been

working in his new position and maintaining his apartment in Erie

County for approximately one year and nine months, and the record

evidence does not substantiate claimant's contention that

decedent was, at the moment of his passing, engaged in travel or

work-related activity for his employer (see Matter of Duffy v

Taconic Correctional Facility, 41 AD3d at 925; Matter of Wilson v

Detroit Hockey Club, 104 AD2d 168, 170 [1984], affd 66 NY2d 848

[1985]). Nor do we find that the record evidence demonstrates

that decedent so regularly performed work for the employer at

home that such residence achieved the status as a place of

employment or "part of the employer's premises" (Matter of

Bobinis v State Ins. Fund, 235 AD2d at 956; see Matter of

Kirchgaessner v Alliance Capital Mgt. Corp., 39 AD3d at 1097-

1098; compare Matter of McRae v Eagan Real Estate, 170 AD2d at

901). Viewing the record evidence in its entirety, we find that

substantial evidence supports the full Board's determination that

decedent's death did not arise out of or in the course of his

AD3d at 997; Matter of Rodriguez v Retail Maintenance Serv.,

Inc., 16 AD3d 993, 994 [2005]). Similarly, nor are the specialerrand or dual-purpose exceptions applicable under the factual

circumstances of this case (see Matter of Neacosia v New York

Power Auth., 85 NY2d at 475 n [1995]; Matter of Borgeat v C & A

Bakery, 89 AD3d 1296, 1296-1297 [2011]; Matter of Davis v Labor

Ready, 69 AD3d 1214, 1215 [2010]). 
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employment and that his death is therefore not compensable under

the Workers' Compensation Law.

Egan Jr., J.P., Rose, Clark and Aarons, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court