Claim of Dorman v. New Process Gear Division Chrysler Corp. ( 1974 )

Main, J. (dissenting).

I respectfully dissent. The majority has concluded that two of the five significant factors set out in Matter of Tedesco v. General Elec. Co. (305 N. Y. 544) have been established here: that the employer’s financial support was substantial, and that there was an advertising and business advantage from the club’s activities which benefited the employer. The record shows that while the employer made a contribution of $400 toward the expense of the dinner after it was staged, this amount ¡was less than 25% of the dinner expense, and the employer’s total annual contribution to the club was less than 14% of the club’s annual total expense. I cannot conclude that these contributions were “substantial”. My search for evidence to support the conclusion that the company received an advertising and business benefit was fruitless. As the court said in Matter of Wilson v. General Motors Corp. (298 N. Y. 468, 473), “ Too tenuous and ephemeral is the possibility that such participation might perhaps indirectly benefit the employer Here, as there, only the possibility is shown.

I am puzzled by the majority’s heavy reliance on Matter of Gore v. New York Air Brake Co. (33 A D 2d 851). In that case, there was evidence that the employer encouraged club activities; that the employer assisted in the collection of dues; that the employer permitted club meetings on company property and during working hours and that the club held regular meetings and educational meetings each month. Also, it is noted that Gore was a member of the club and his death occurred during the function or event. None of these circumstances are present here, and I find that case clearly distinguishable from the case at hand.

The decision should be reversed and the claim dismissed.

Herlihy, P. J., iStaley, Jr., and Cooke, JJ., concur with Greenblott, J.; Main, J., dissents and votes to reverse in an opinion.

Decision affirmed, with costs to respondents filing briefs.