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JONES v. STATE OF NEW YORK

40 A.D.2d 227 (1972)

Lynda Jones, Individually and as Administratrix of The Estate of Herbert W. Jones, Jr., Respondent, v. State of New York, Appellant. (Claim No. 54555; Cross Motion No. M-14178.)

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

December 12, 1972.

Attorney(s) appearing for the Case

Louis J. Lefkowitz, Attorney-General (Jean M. Coon and Ruth Kessler Toch of counsel), for appellant.

Cunningham, Cole, Sorrentino & Cavanaugh (William J. Cunningham, Jr., of counsel), for respondent.

WITMER and MOULE, JJ., concur with DEL VECCHIO, J. P.; CARDAMONE, J., dissents and votes to affirm the order, in an opinion, in which MARSH, J., concurs.

DEL VECCHIO, J. P.

The State appeals from an order denying a motion to dismiss a claim for failure to state a cause of action.

Decedent's injuries and death occurred in the course of efforts by the New York State Police to retake control of Attica State Correctional Facility following the prison uprising in which decedent was taken a hostage. The claim by his administratrix seeks to recover from the State...

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