Cunningham v. State

— Order unanimously reversed, without costs, motion granted and claim dismissed, in accordance with the following memorandum: In these wrongful death actions, arising out of the Attica uprising, claimants contend that the injuries to decedents were intentionally inflicted by the State. Claimants’ attorney has conceded that these actions are governed by Werner v State of New York (53 NY2d 346) and that the claimants are now barred from maintaining this action at law after having applied for and accepted workers’ compensation benefits. Claimants’ attorney has requested a continuance in these actions to enable him to return to the Workers’ Compensation Board for reconsideration of its decision. We agree that claimants should be given that opportunity but consider a continuance or stay unnecessary. If the board rescinds its determination, claimants are free to reinstitute a tort action within six months of dismissal of the claim by the board (CPLR 205, subd [c]; Kimbrough v C.F.L. Dev. Corp., 80 AD2d 737). (Appeal from order of Court of Claims, Quigley, J. — dismiss claim, severance.) Present — Hancock, Jr., J. P., Callahan, Denman, Boomer and Moule, JJ.