Matter Claim Barbara J. Gore v. New York Air Brake Company Et Al‪.‬

[33 A.D.2d 851 Page 851] On Saturday, September 11, 1965 decedent, a 33-year-old time study engineer, suddenly collapsed and died while playing ball
at the annual picnic of the Management Club of the New York Air Brake Company. The board has found decedent's death arose
out of and in the course of employment. This determination is factual and thus if supported by substantial evidence must be
upheld (e.g., Matter of Jablonski v. General Motors Acceptance Corp., 22 A.D.2d 724; Matter of Nahabedian v. Equitable Life
Ins. Co., 16 A.D.2d 713, mot. for lv. to app. den. 11 N.Y.2d 647). In Matter of Tedesco v. General Elec. Co. (305 N. Y. 544),
the Court of Appeals set out the following as significant factors in determining if activities of the nature here involved
fall within the scope of the employment relationship: (1) the activities were carried out on the premises of the employer;
(2) the employer gave substantial financial support; (3) the employer's control was dominant; (4) advertising and business
advantages accrued to the employer; and (5) the employer could halt the program at will. (See, also, Matter of Nahabedian
v. Equitable Life Ins. Co., supra ; Matter of Gillard v. North Syracuse Cent. School, 28 A.D.2d 1022.) On the instant record
only the fourth factor and possibly to some extent the second alluded to in Tedesco are possibly applicable. Here the picnic
was sponsored and planned by the Management Club, an employee association controlled by lower level management and not employer
dominated (cf., Matter of Esposito v. Western Elec. Co., 30 A.D.2d 750), and thus despite the employer's donation to this
affair, if the case involved only a picnic there would not be sufficient evidence to bring the activity within the scope of
employment (Matter of Koperda v. Waterbury & Sons Co., 27 A.D.2d 968). However, the Management Club engaged in other
activities whose relationship with the employer are such that it cannot be said as a matter of law in this close case that
the board could not find in the exercise of its fact-finding province that these activities involved more than employer-employee
good will (cf., Matter of Wilson v. General Motors Corp., 298 N. Y. 468, 473) and were sufficiently related to employment
so that all club activities, including the picnic, were brought within the scope of employment. Clearly the employer while
not dominating the club encouraged club activities by its financial contribution, albeit relatively limited, its assistance
in the collection of dues, its allowance of some meetings to be held on company premises and during working hours for some
persons. In addition the employer unquestionably derived some [33 A.D.2d 851 Page 852]