8 A.D.2d 902 | N.Y. App. Div. | 1959
Appeal from an order of the Court of Claims dismissing a motion made by the State pursuant to rule 107 of the Rules of Civil Practice, to dismiss the claim herein upon the ground that .the court had no jurisdiction of the subject matter of the action. The claim seeks an award for damages sustained as the result of the death of one Thomas W.-. Ross, allegedly caused by certain acts and omissions of the State. The following facts appear without dispute. Decedent was employed as a hospital attendant at the Binghamton State Hospital. He died on September 5, 1957 as the result of injuries sustained when he was stabbed by an alleged lunatic whom the intestate was attempting, at the direction of his superior officers, to apprehend and return to .the hospital. Decedent of course was an employee of the State and his widow was entitled to compensation under the Workmen’s Compensation Law, 'because clearly it could be found that he died as the result of accidental injuries arising out of and in the course of his employment. As a matter of fact the widow made a claim and was awarded compensation. It is sought to bring the claim herein out of the ambit of the Workmen’s Compensation Law under those cases which enunciate the principle that an employer who has been guilty of an intentional and deliberate assault, either directly or through an agent, cannot relegate the employee to the Workmen’s Compensation Law as the sole remedy for his tortious act {Lavim v. Goldberg Bldg. Material Corp., 274 App. Div. 690, 279 App. Div. 1128, motion dismissed 304 N. Y. 738; Be Coigne v. Ludlum Steel Co., 251 App. Div. 662). To this end the claimant has alleged in her claim deliberate, intentional, wanton and gross negligence on the part of decedent’s superiors. We think however from the undisputed facts revealed in the record that a willful intention to harm decedent cannot
