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Claim of Potter v. VM Paolozzi Imports, Inc.

91 A.D.3d 1016 Court N.Y. App. Div. Decision date 2012-01-05 English

Delivered by Peters, J.

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p. 1016
In the Matter of the Claim of Richard Potter, Jr., Respondent, v VM Paolozzi Imports, Inc., et al., Appellants. Workers’ Compensation Board, Respondent.
[935 NYS2d 918]

We affirm. “Accidents that occur during an employee’s short breaks, such as coffee breaks, are considered to be so closely related to the performance of the job that they do not constitute an interruption of employment” (Matter of Pabon v New York City Tr. Auth., 24 AD3d 833 [2005] [citations omitted]; accord Matter of Kontogiannis v Nationwide PC, 51 AD3d 1180 , 1181 [2008]). Benefits are awarded “on the theory of constructive control of the employee by the employer during the off-premises activity” (Matter of Balsam v New York State Div. of Empl., 24 AD2d 802 , 803 [1965]; accord Matter of Kouvatsos v Line Masters, 281 AD2d 769 , 770 [2001]). Here, claimant’s supervisor testified that it was customary to allow salespeople to leave the dealership on short paid breaks. Claimant requested permission

p. 1017
to pick up the dinners for the finance manager, which required a very short drive from the dealership. Claimant had only been gone approximately 15 minutes, and was already on his way back to the dealership, when the accident occurred. We find that substantial evidence supports the Board’s determination that claimant’s short break did not constitute an interruption of employment (see Matter of Kontogiannis v Nationwide PC, 51 AD3d at 1181-1182 ; Matter of Pabon v New York City Tr. Auth., 24 AD3d at 833 ; Matter of Caporale v State Dept. of Taxation & Fin., 2 AD2d 91 , 92 [1956], affd 2 NY2d 946 [1957]) and, therefore, the Board’s determination will not be disturbed.

Mercure, A.P.J., Rose, Lahtinen and Garry, JJ., concur. Ordered that the decision is affirmed, with costs to claimant.

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