Opinion
Argued January 11, 1967
Decided February 23, 1967
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, DOROTHEA E. DONALDSON, J.
Jeannette H. Harris and John H. Roberts for appellants.
Louis J. Lefkowitz, Attorney-General ( Emil Woldar and Ruth Kessler Toch of counsel), for respondent.
Order of Appellate Division reversed, with costs, and matter remitted to that court for determination of the questions of fact. Under the rule in Volk v. City of New York ( 284 N.Y. 279) claimants were entitled to make their claims based on common-law negligence (see, also, Robison v. State of New York, 263 App. Div. 240, 266 App. Div. 1054, affd. 292 N.Y. 631).
Concur: Judges VAN VOORHIS, BERGAN, KEATING and BREITEL. Chief Judge FULD dissents and votes to affirm in the following opinion in which Judges BURKE and SCILEPPI concur.
It seems to me, as it did to the Appellate Division, that the injuries suffered by the claimant arose out of and in the course of her employment. Accordingly, her sole recourse was to proceed under the Workmen's Compensation Law, and I agree with the reasons given by the Appellate Division in reaching that result.
The injury resulting from the claimant's fall from the stretcher may not be said to be a risk not a part of, or incidental to, her employment. To the extent that Volk v. City of New York ( 284 N.Y. 279) points a different conclusion, I would overrule it. (See Balancio v. United States, 267 F.2d 135, 137.) The concept of what constitutes an act arising out of and in the course of employment has been considerably broadened in the 27 years since our decision in that case.
I would affirm the order appealed from.
Order reversed, etc.