Calendar Date: May 1, 2018Before: Garry, P.J., McCarthy, Devine, Aarons and Pritzker, JJ.__________Geoffrey Schotter, New York City, for appellant.Foley, Smit, O’Boyle & Weisman, Hauppauge (Theresa E.Wolinski of counsel), for New York City Transit Authority,respondent.__________Garry, P.J.Appeal from a decision of the Workers’ Compensation Board,filed January 17, 2017, which ruled that claimant’s injuries didnot arise out of and in the course of her employment and deniedher claim for workers’ compensation benefits.Claimant was employed as a train conductor for the selfinsuredemployer, assigned on weekends to the 180th Streetstation in New York City and scheduled to start her shift at 6:05a.m.. At 5:10 a.m. on Saturday, January 30, 2016, claimant waswaiting for a train at a station through which she was passingen route to her assigned workplace, when another passenger askedto be admitted into the station without paying. After she toldhim that she could not open the gate to let him in, he jumped theturnstile and assaulted her, causing multiple injuries includingto her face, head, neck and back. Claimant applied for workers’compensation benefits, which a Workers’ Compensation Law Judgedenied, finding that the injuries did not arise out of and in thecourse of her employment. Upon review, the Workers’ CompensationBoard, with one judge dissenting, affirmed. This appeal ensued.“An injury is only compensable under the Workers’Compensation Law if it arose out of and in the course of aworker’s employment and, in general, injuries sustained in thecourse of travel to and from the place of employment do not comewithin the statute” (Matter of Carroll v Fagan, Inc., 82 AD3d1463, 1463 [2011] [internal quotation marks and citationsomitted]; see Workers’ Compensation Law § 10 [1]; Matter ofPittner v St. Gobain Corp., 144 AD3d 1348, 1348 [2016], lv denied29 NY3d 919 [2017]). Injuries incurred while commuting to workare generally not covered because “the risks inherent intraveling to and from work relate to the employment only in themost marginal sense” (Matter of Lemon v New York Tr. Auth., 72NY2d 324, 326-327 [1988] [internal quotation marks and citationomitted]). There are recognized exceptions but, here,substantial evidence supports the Board’s determination thatclaimant’s injuries sustained while commuting are notcompensable, as none of the relevant exceptions to this ruleapplies (see Matter of Neacosia v New York Power Auth., 85 NY2d471, 475, 478 [1995]).According to claimant, the assault occurred almost an hourbefore the start of her shift, on her way to work, before signingin at her assigned station as required at the start of her shift.The employer neither encouraged nor benefitted from her commuteroute. Thus, at the time of the assault, claimant was not yet onduty or at her assigned station and was not performing any dutiesof her employment or undertaking an errand for the employer (seeMatter of Neacosia v New York Power Auth., 85 NY2d at 475-478;Matter of Slack v Livingston-Wyoming ARC, 294 AD2d 716, 718[2002], lv dismissed 98 NY2d 727 [2002], appeal dismissed 100NY2d 591 [2003]; Matter of Coningsby v New York State Dept. ofCorrection, 245 AD2d 1009, 1010 [1997]; compare Matter of Borgeatv C & A Bakery, 89 AD3d 1296, 1296-1297 [2011]; Matter ofDziedzic v Orchard Park Cent. School Dist., 283 AD2d 878, 878-879[2001]). Although claimant had opted to wear her work uniform onher commute, she was not required to do so, nor was she requiredto use public transportation to get to work. The employerprovided a transportation pass, but there was no evidence that itwas contractually bound to provide free transit, and the use ofthe pass did not make claimant’s commute a part of her employment(see Matter of Lemon v New York Tr. Auth., 72 NY2d at 328-329).1Rather, at the relevant time, claimant was a commuter using thesubways like the general public and, while she was on propertyowned and operated by the employer, substantial evidence supportsthe Board’s determination that this did not establish a casualconnection between her employment and the assault (see id. at330). While injuries sustained as a result of a work-relatedassault may be compensable, the record supports the Board’sconclusion that there was an insufficient nexus betweenclaimant’s employment and uniform and the motivation for theassault (compare Matter of Seymour v Rivera Appliances Corp., 28NY2d 406, 409 [1971]; Matter of Mosley v Hannaford Bros. Co., 119AD3d 1017, 1017-1018 [2014]).The Board also rationally rejected the dual purposeexception to the “going and coming rule,” which applies “when anemployee is injured in transit to or from a location off theemployer’s premises when the employee’s presence at that locationserved both a business and personal purpose” (Matter of Neacosiav New York Power Auth., 85 NY2d at 475 n and 477). Claimant’scommute served her personal interest in getting to work. Thereis no evidence that the method or route she chose served anybusiness purpose, or that the employer benefitted from that route(see Matter of Gabriele v Educational Bus Transp., Inc., 17 AD3d910, 911 [2005]; compare Matter of Slack v Livingston-WyomingARC, 294 AD2d at 718). We have considered claimant’s remainingcontentions and, to the extent they were preserved, we find thatthey are without merit.McCarthy, Devine, Aarons and Pritzker, JJ., concur.ORDERED that the decision is affirmed, without costs.ENTER:Robert D. MaybergerClerk of the Court
