Claim of Rizzuto v. Prudential Insurance

Appeal from an award of the State Industrial Board noticed December 26, 1935. The claimant was injured in his employment April 27, 1934. On June 7, 1934, he filed an election to sue third parties, and brought an action in which four persons were named as defendants, three of whom were not served. On November 6, 1935, the action was discontinued without release and without the consent of the employer or carrier. On the first hearing when all parties were present, the carrier insisted that the action be continued to judgment, but the Board held that the discontinuance was proper, and that the employer or carrier was not prejudiced thereby, as they still had about a year and a half after the award within which to bring its action against the third party. Award affirmed, with costs to the State Industrial Board. Hill, P. J., MeNamee, Crapser and Heffernan, JJ., concur; Rhodes, J., dissents. (See Matter of Breitel v. Hinderstein, 261 N. Y. 556.)