SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
January 16, 1969
MICHIGAN MUTUAL LIABILITY COMPANY, APPELLANT,
STATE OF NEW YORK, RESPONDENT
Appeal from judgment of Court of Claims, dismissing claim.
Bastow, P. J., Goldman, Del Vecchio, Witmer and Henry, JJ.
Memorandum: Claimant (workmen's compensation carrier for Frank Tartaglia, Inc.) appeals from a judgment of the Court of Claims (53 Misc. 2d 408) which dismissed its claim to recover $2,000 paid by it to the Workmen's Compensation Board under subdivision 9 of section 15 and section 25-a of the Workmen's Compensation Law. Subdivision 5 of section 29 of the Workmen's Compensation Law gives an insurance carrier a cause of action against a third-party wrongdoer to recover the amounts so paid in cases where the workman's death resulted from injuries sustained within the scope of his employment (Liberty Mut. Ins. Co. v. Colon & Co., 260 N. Y. 305). Tartaglia's employee Mahan was fatally injured in a collision on a State highway while he was riding in a station wagon supplied by his employer to transport its workmen from a job at Romulus, N. Y. to their home City of Syracuse. His widow claimed workmen's compensation and as his administratrix successfully prosecuted a claim against the State for his wrongful death caused by the State's negligence in the maintenance of the State highway. The trial court in dismissing appellant's claim, erroneously decided that Mahan's death did not occur in the course of his employment. Mahan was returning from his place of employment at his employer's expense. Under these circumstances the accident arose out of an incident of his employment. It is not important that the workmen were under no compulsion to use the afforded transportation (Fay v. De Camp, 257 N. Y. 407, 411) or that they were not paid for the time when they were being transported (Matter of Littler v. Fuller, 223 N. Y. 369). The important point is that the employees were returning from their place of work at their employer's expense (Solomon v. Russo, 20 N.Y.2d 688).
Judgment unanimously reversed on the law and facts, with costs, and judgment granted to claimant.
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