Ross v. State

14 Misc. 2d 1068, 181 N.Y.S.2d 34, 1959 N.Y. Misc. LEXIS 4568

Opinion

Biohard S. Heller, J.

This is an application by the State to dismiss the claim herein, pursuant to section 107 of the Buies of Civil Practice, upon the ground that this court has no jurisdiction of the subject of the action.

Claimant’s intestate, Thomas W. Boss, was hired by the Binghamton State Hospital as an attendant on July 2, 1957. His duties had been in and about the wards of the hospital until he was sent with others to bring a patient back to the hospital on September 5, 1957. While attempting the return, Boss was stabbed by the patient and died from the assault.

Claimant herein has received an award of workmen’s compensation and the State contends that such an award is the exclusive remedy of claimant. The claim herein as filed alleges “willful, unlawful, deliberate and intentional wrong and the wanton and grave negligence of the State of New York.”

Without passing upon the merits in any way it would seem that the claimant is entitled to a trial. The court has jurisdiction. ■ (Lavin v. Goldberg Bldg. Material Co., 274 App. Div. , 279 App. Div. 1128, motion for leave to appeal denied 280 App. Div. 902; see, also, De Coigne v. Ludlum Steel Co., 251 App. Div. 662; Garcia v. Gusmach Restaurant Corp., 150 N. Y. S. 2d 232.)

The motion is denied. Submit order.