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IN RE: the Claim of Donna SMITH (1998)

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: the Claim of Donna SMITH, Appellant, v. CITY OF ROCHESTER et al., Respondents. Workers' Compensation Board, Respondent.

Decided: November 25, 1998

Before CARDONA, P.J., MIKOLL, WHITE, PETERS and GRAFFEO, JJ. David L. Owens, Rochester, for appellant. Hamberger & Weiss (Ronald E. Weiss of counsel), Rochester, for City of Rochester, respondent.

Appeal from a decision of the Workers' Compensation Board, filed September 30, 1997, which ruled that claimant did not sustain an accidental injury in the course of her employment and denied her claim for workers' compensation benefits.

 Claimant, a parking monitor, was returning to work after eating at a restaurant on her unpaid lunch break when she fell on a wet floor located in front of the elevator leading out of the restaurant.   The Workers' Compensation Board denied claimant benefits on the ground that the accident did not arise out of and in the course of her employment.   We affirm.   Lunchtime injuries are generally deemed to occur outside the scope of employment except under limited circumstances where the employer continues to exercise authority over the employee during the lunch break (see, Matter of Smith v. United States Trucking Corp., 66 A.D.2d 939, 411 N.Y.S.2d 423).   Since claimant had discretion over the timing and location of her lunch breaks, and as the employer neither suggested that she purchase lunch at that particular restaurant nor derived any benefit from her decision to do so, we find that substantial evidence supports the Board's decision (see, Matter of Coningsby v. New York State Dept. of Corrections, 245 A.D.2d 1009, 667 N.Y.S.2d 101).

ORDERED that the decision is affirmed, without costs.


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