                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 6, 2014                    518185
________________________________

In the Matter of the Claim of
   ROSARIO NOBOA,
                    Respondent,
      v

INTERNATIONAL SHOPPES, INC.,                 MEMORANDUM AND ORDER
   et al.,
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   October 7, 2014

Before:    Lahtinen, J.P., Stein, McCarthy, Rose and Clark, JJ.

                              __________


      Stewart Greenblatt Manning & Baez, Syosset (David D.
Goldsmith of counsel), for appellants.

      Grey & Grey, Farmingdale (Kevin M. Plante of counsel), for
Rosario Noboa, respondent.

      Eric T. Schneiderman, Attorney General, New York City (Iris
A. Steel of counsel), for Workers' Compensation Board,
respondent.

                              __________


Rose, J.

      Appeal from a decision of the Workers' Compensation Board,
filed February 28, 2013, which ruled that claimant sustained an
accidental injury in the course of her employment and awarded
workers' compensation benefits.
                              -2-                518185

      Claimant was a sales associate at the employer's Kennedy
Airport store. When the airport and the store closed early and
the public transportation that claimant normally took home from
the airport was suspended due to a major snow storm, the employer
terminated claimant's shift – although she was paid for the
remainder of the day – and transported her and other employees
from the store using a van with no seats that was ordinarily used
to transport merchandise. During the ride, claimant injured her
spine as a result of being repeatedly thrown against the van
door. In February 2011, claimant filed a claim for workers'
compensation benefits, which was controverted by the employer and
its workers' compensation carrier. Following hearings, a
Workers' Compensation Law Judge disallowed the claim, finding
that the injury did not arise out of and in the course of
claimant's employment. On appeal, the Workers' Compensation
Board reversed and awarded benefits, and the employer and the
carrier now appeal.

      We affirm. Generally, travel to and from the place of
employment is not considered to be within the scope of employment
and, thus, injuries sustained during that period are not
compensable (see Matter of Borgeat v C & A Bakery, 89 AD3d 1296,
1296 [2011]; Matter of Davis v Labor Ready, 69 AD3d 1214, 1215
[2010]). However, an exception arises when the employer takes
responsibility for transporting employees, particularly where the
employer is in exclusive control of the means of conveyance (see
Matter of Holcomb v Daily News, 45 NY2d 602, 606-607 [1978];
Matter of Davis v Labor Ready, 69 AD3d at 1215). The key
determination in establishing compensability is whether there is
"some nexus between the accident and the employment" (Matter of
Lemon v New York City Tr. Auth., 72 NY2d 324, 329 [1988]; see
Matter of Monachino v Vigneri & Sons, 300 AD2d 797, 797-798
[2002]). Here, it is undisputed that the employer furnished the
van for transportation, one of claimant's supervisors was the
driver and, further, claimant's injuries were sustained during
the course of that transportation while she was still on the
clock and being paid. Inasmuch as the employer took
responsibility for the inherent risks of transporting its
employees from the work site and had exclusive control of the
conveyance, we find no reason to disturb the Board's
determination that claimant's injury arose out of and in the
                              -3-                  518185

course of her employment (see e.g. Michigan Mut. Liab. Co. v
State of New York, 31 AD2d 780, 780 [1969], affd 25 NY2d 647
[1969]; Matter of Cornelius v Brock, 27 AD2d 604, 605 [1966]).

     Lahtinen, J.P., Stein, McCarthy and Clark, JJ., concur.



      ORDERED that the decision is affirmed, with costs to
claimant.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
