                            State of New York
                     Supreme Court, Appellate Division
                         Third Judicial Department
Decided and Entered: November 17, 2016                     521899
________________________________

In the Matter of the Claim of
   CAL PITTNER,
                    Claimant,
      and

FRANCESCA BECCARI,                            MEMORANDUM AND ORDER
                      Appellant,
     v

ST. GOBAIN CORPORATION et al.,
                    Respondents.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   October 17, 2016

Before:   Egan Jr., J.P., Rose, Clark, Mulvey and Aarons, JJ.

                               __________


     William Chen, Williamsville, for appellant.

      Hamberger & Weiss, Buffalo (Renee E. Heitger of counsel),
for St. Gobain Corporation and another, respondents.

                               __________


Mulvey, J.

      Appeal from a decision of the Workers' Compensation Board
filed January 7, 2015, which ruled that decedent's death did not
arise out of and in the course of his employment and disallowed
the claim for workers' compensation death benefits.

      On November 3, 2010, David Pittner (hereinafter decedent),
who worked for the St. Gobain Corporation as a Director of Human
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Resources, died inside of his apartment located in Erie County.
Thereafter, a claim for workers' compensation death benefits was
filed. Following hearings, a Workers' Compensation Law Judge
found that decedent's death arose out of and in the course of his
employment while traveling for his employer. Upon administrative
review, a majority decision of the Workers' Compensation Board
affirmed; one Board panel member dissented. The employer
requested mandatory full Board review of the Board's decision.
Following such review, the full Board, finding that decedent's
death did not arise out of and in the course of his employment,
reversed the decision of the Board panel and disallowed the claim
for death benefits. This appeal ensued.

      We affirm. It is well settled that, although an employee's
death is compensable under the Workers' Compensation Law if it
arises out of and in the course of employment, injuries sustained
during travel to and from the place of employment are not
compensable (see Matter of Neacosia v New York Power Auth., 85
NY2d 471, 474-475 [1995]; Matter of Bednarek v Caring
Professionals Inc., 111 AD3d 997, 997 [2013]; Matter of Duffy v
Taconic Correctional Facility, 41 AD3d 923, 924 [2007]).
Exceptions to this rule, however, exist (see Matter of Neacosia v
New York Power Auth., 85 NY2d at 475). Relevant here, "injuries
sustained by an employee while traveling in the business of his
employer [are] compensable if they occurred while the employee
was actually acting in furtherance of his employer's business"
(Matter of Capizzi v Southern Dist. Reporters, 61 NY2d 50, 52
[1984]) or if the "employee's home, because he or she so
customarily works there, has achieved the status of an additional
place of employment" (Matter of Kirchgaessner v Alliance Capital
Mgt. Corp., 39 AD3d 1096, 1097 [2007]; Matter of Neacosia v New
York Power Auth., 85 NY2d at 475; Matter of Bobinis v State Ins.
Fund, 235 AD2d 955, 956 [1997]; Matter of McRae v Eagan Real
Estate, 170 AD2d 900, 901 [1991]).1


      1
         Inasmuch as decedent did not die while in transit to a
work site or location, the outside-employee exception to the
general rule that injuries sustained during travel to and from
the place of employment are not compensable is not applicable
here (see Matter of Bednarek v Caring Professionals Inc., 111
                              -3-                521899

      Decedent maintained a primary residence in Arizona as well
as a residence in Worcester, Massachusetts. Upon accepting a new
position with his employer in 2009, decedent continued to
maintain his residence in Arizona but left his residence in
Worcester to relocate to Erie County, where he leased an
apartment that he furnished as a private residence. When he
stayed at this apartment, decedent was neither reimbursed for his
living expenses nor for the cost of the apartment. While
decedent's job responsibilities required him to travel often to
other locations, the record evidence reflects that he spent
approximately half of his time in Erie County, which afforded him
the opportunity to visit his son who also lived in western New
York. Decedent's son also maintained a bedroom in the apartment
where he stayed when he visited decedent in Erie County.
Significantly, at the time of decedent's death, he had been
working in his new position and maintaining his apartment in Erie
County for approximately one year and nine months, and the record
evidence does not substantiate claimant's contention that
decedent was, at the moment of his passing, engaged in travel or
work-related activity for his employer (see Matter of Duffy v
Taconic Correctional Facility, 41 AD3d at 925; Matter of Wilson v
Detroit Hockey Club, 104 AD2d 168, 170 [1984], affd 66 NY2d 848
[1985]). Nor do we find that the record evidence demonstrates
that decedent so regularly performed work for the employer at
home that such residence achieved the status as a place of
employment or "part of the employer's premises" (Matter of
Bobinis v State Ins. Fund, 235 AD2d at 956; see Matter of
Kirchgaessner v Alliance Capital Mgt. Corp., 39 AD3d at 1097-
1098; compare Matter of McRae v Eagan Real Estate, 170 AD2d at
901). Viewing the record evidence in its entirety, we find that
substantial evidence supports the full Board's determination that
decedent's death did not arise out of or in the course of his


AD3d at 997; Matter of Rodriguez v Retail Maintenance Serv.,
Inc., 16 AD3d 993, 994 [2005]). Similarly, nor are the special-
errand or dual-purpose exceptions applicable under the factual
circumstances of this case (see Matter of Neacosia v New York
Power Auth., 85 NY2d at 475 n [1995]; Matter of Borgeat v C & A
Bakery, 89 AD3d 1296, 1296-1297 [2011]; Matter of Davis v Labor
Ready, 69 AD3d 1214, 1215 [2010]).
                              -4-                  521899

employment and that his death is therefore not compensable under
the Workers' Compensation Law.

     Egan Jr., J.P., Rose, Clark and Aarons, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
