| Matter of Gutierrez v Courtyard by Marriott |
| 2007 NY Slip Op 10421 [46 AD3d 1241] |
| December 27, 2007 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Martha J. Gutierrez, Respondent, vCourtyard by Marriott et al., Appellants. Workers' Compensation Board,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Steven Segall of counsel), forWorkers' Compensation Board, respondent.
Mugglin, J. Appeal from a decision of the Workers' Compensation Board, filed September 1,2005, which ruled that the death of claimant's decedent arose out of and in the course of heremployment and awarded claimant workers' compensation benefits.
On March 9, 2003, claimant's daughter was found murdered in the lower level of theCourtyard by Marriott hotel (hereinafter hotel) located at John F. Kennedy International Airport.At the time, claimant's daughter was employed as a guest services agent working at the front deskof the hotel and had left that location to go to the employees' restroom located in the lower level.Following a number of hearings, claimant's application for death benefits was granted by theWorkers' Compensation Law Judge (hereinafter WCLJ). On administrative appeal to theWorkers' Compensation Board, the decision of the WCLJ was affirmed. The employer and itsworkers' compensation carrier appeal.
We affirm. A claimant seeking workers' compensation death benefits must establish that thedeath occurred during the course of employment and arose out of the employment (see Matterof Rosen v First Manhattan Bank, 202 AD2d 864, 864-865 [1994], affd 84 NY2d856[*2][1994]). First, there can be no serious dispute that thedeath occurred during the course of employment. Decedent was on duty at the hotel's front deskand the fact that she left to go to the restroom does not constitute such an interruption ofemployment as to compel a determination that the death did not occur during employment (see Matter of Pabon v New York City Tr.Auth., 24 AD3d 833, 833 [2005]). Second, whether the fatal attack arose out ofemployment is dependent upon whether the attack flows from work-related differences or purelypersonal animosity (see Matter of Perezv Victory Motor Inn, 2 AD3d 963, 963 [2003]). If there is any demonstrated nexus,however slender, between the motivation for the assault and employment, an award of workers'compensation death benefits is appropriate (see Matter of Seymour v Rivera AppliancesCorp., 28 NY2d 406, 409 [1971]). Further, under Workers' Compensation Law § 21,since the death occurred during the course of decedent's employment, a presumption arises thatthe death arose out of the scope of employment unless the presumption is successfully rebutted(see Matter of Rosen v First Manhattan Bank, 202 AD2d at 865). Here, the recordevidence points to decedent's boyfriend, also an employee of the hotel, as the perpetrator of themurder. A number of witnesses testified on behalf of claimant that decedent's boyfriend wasoverly jealous as a result of the manner in which decedent dealt with customers of the hotel. Thisevidence provides the necessary nexus between decedent's employment and her death andconstitutes substantial evidence establishing that the death arose out of employment (seeMatter of Blair v Bailey, 279 AD2d 941, 942-943 [2001], lv dismissed 96 NY2d 824[2001]).
The employer and carrier's protestations that the hearings should have been adjourned untilafter the boyfriend's criminal trial and the exclusion of certain evidence necessary to rebut thepresumption are meritless. Although the record establishes that the District Attorney's officerequested that the hearings be adjourned until the completion of the criminal trial, the recordfurther establishes that the criminal trial had not been scheduled during the two years prior to theWCLJ's decision. Under these circumstances, we find no abuse of discretion in denying anadjournment until the completion of the criminal trial (see Matter of Slack vLivingston-Wyoming ARC, 294 AD2d 716, 717 [2002], lv dismissed 98 NY2d 727[2002]).
Lastly, the exclusion of hearsay evidence does not require reversal. Hearsay evidence isadmissible at workers' compensation hearings, but it can only support a finding that is contrary toother record evidence if it is "sufficiently reliable" (Matter of Pugliese v RemingtonArms, 293 AD2d 897, 897-898 [2002]). Here, we find no basis to disturb the rulingsexcluding certain statements taken by investigating police officers and excluding a telephoneconversation between decedent's coworker and a person who identified herself as the allegedmurderer's sister as too unreliable and prejudicial. Even if the evidence had been admitted, suchhearsay testimony regarding personal conflicts between decedent and her boyfriend, "standingalone, is not sufficient to rebut the statutory presumption" that the death derived from decedent'semployment and must be supported by corroborative " 'circumstances and other evidence' "(Matter of Kelly v New York City Tr. Auth., 39 AD2d 1006, 1006 [1972], affd33 NY2d 373 [1974], quoting Matter of Guggenheim v Hedke & Co., 32 AD2d 1017,1018 [1969], affd 27 NY2d 596 [1970]).
Mercure, J.P., Rose, Lahtinen and Kane, JJ., concur. Ordered that the decision is affirmed,without costs.