| N.Y. App. Div. | Oct 20, 1966
Appeal by claimant from a decision which disallowed a claim for death benefits on the finding that decedent’s fatal automobile accident on the grounds of the employer’s hospital did not arise out of and in the course of his employment. Decedent, an officer in a hospital maintained by the Correction Department, lived on the premises, and on returning thereto at about 3:00 a.m., on a day when he was not on duty operated his car off the roadway and into a tree. Appellant seeks reversal under the familiar authorities which have affirmed awards for accidental injuries sustained by off-duty employees residing on the premises by virtue of their contracts of employment or otherwise for the benefit of their employers. (See, e.g., Matter of Galvez v. Gold Coast Enterprises, 23 A D 2d 600.) In this case, however, there was uneontradieted proof that there was no requirement that Correction Department officers such as decedent live on the premises and that decedent’s election to do so was voluntary and his duties no different from those of officers living off the premises; and, further, that while officers on the grounds were subject to call in an emergency (although none had occurred for at least 25 years), those living off the premises were equally liable, without distinction, those on