In the Matter of the Claim of Janet S. Peckham, Respondent, v. Peckham Materials Corporation, Appellant, and American Motorists Insurance Company, Respondent. Workers' Compensation Board, Respondent

In the Matter of the Claim of Janet S. Peckham, Respondent, v Peckham Materials Corporation, Appellant, and American Motorists Insurance Company, Respondent. Workers’ Compensation Board, Respondent. [MAJORITY — — Yesawich, Jr., J.] — Yesawich, Jr., J. Appeal from a decision of the Workers’ Compensation Board, filed October 29, 1987, which ruled that claimant’s decedent did not sustain an accident during the course of his employment and denied claimant’s claim for workers’ compensation benefits. On May 29, 1981, John Peckham, president and board chairman of the employer, Peckham Materials Corporation, had been on a golf outing. After leaving the other players, Peckham was killed when the company-owned helicopter carrying him crashed. Responding to the tort action thereafter brought by his widow against the employer, the employer’s liability insurance carrier asserted the exclusivity of workers’ compensation as an affirmative defense and, in accordance with the procedure outlined in O’Rourke v Long (41 NY2d 219), the Second Department directed that the Workers’ Compensation Board determine whether Peckham’s death arose out of and in the course of his employment (Peckham v Peckham Materials Corp., 102 AD2d 884). Upon a review of the record, a unanimous panel of the Workers’ Compensation Board found that: "[T]he purpose of the May 29, 1981 golf outing was for personal recreation of a group of golfers who are friends; further there is no evidence to indicate any business was transacted or discussed; further the evidence, particularly [the testimony of James V. DeForrest, vice-president and operations manager of the employer, who with decedent planned the outing] indicates that DeForrest and the decedent personally paid the bills for that day; the Panel further finds that * * * decedent had used the company helicopter for personal use; the Panel finds that the death of John Peckham did not arise out of and in the course of employment.” There is substantial evidence to sustain the Board’s determination. Decision affirmed, with one bill of costs to respondents filing briefs. Kane, J. P., Yesawich, Jr., Levine, Mercure and Harvey, JJ., concur.