Toro v. 1700 First Avenue Corporation

In Toro v. 1700 First Avenue Corporation, (16 A.D.2d 852) the Court held that a resident superintendent of several apartment buildings, subject to call 24 hours of each day, was assaulted in the course of his employment by unknown assailant late in evening shortly after superintendent left apartment to fix boiler in another building, and that the assault was within coverage of Workmen's Compensation Law. The Appellate Division opinion stated: That the assault arose in the course of employment is demonstrated by uncontradicted evidence supplied in considerable measure by the employer itself... No personal motive is ascribed for the attack on deceased. It is gleanable that the board regarded robbery as its incentive. This is indicated by its statements concerning the absence of deceased's wallet and the finding of his keys in an automobile owned by one of the tenants to which he had access for the purpose of changing its parking place periodically to comply with municipal regulations and subsequently found by the police to have been abandoned some distance from the scene of the crime. The duties of deceased called him in the darkness of late evening to the basement of one of his employer's apartment houses to attend a faulty boiler about which tenants had complained. The site of his work was separated from the traveled way by an intervening courtyard and at least to some extent removed from public view. In this physically opportune setting the exposure to the danger of assault by a footpad clearly transcended the peril common to mankind in general. As an incident of the work deceased was thus brought 'within the zone of special danger' and in contact with the risk which caused his death. In these circumstances there is coverage under the Workmen's Compensation Law.