Order reversed, on the law, without costs, motion granted and claim dismissed. Memorandum: Defendant appeals from an order of the Court of Claims denying its motion for summary judgment. The notice of claim alleges that claimant’s decedent, while employed by defendant as a guard at the Attica Correctional Facility, was killed as a result of the actions of the State of New York in retaking control of the prison from riotous inmates on Sentember 13, 1971. The notice of claim asserts both negligence and intentional tort, specifically claiming damages for alleged false imprisonment, personal injuries and wrongful death sustained by claimant’s decedent as the result of an unprovoked, willful, wanton and intentional assault and battery by the State of New York, its officers, agents and employees. So much of the claim as alleged negligence was dismissed upon the ground that the exclusive remedy for such injuries is workers’ compensation (Jones v State of New York, 33 NY2d 275). The uncontradicted evidence is that claimant filed for and was awarded workers’ compensation for the same injuries alleged in her claim, and that compensation payments from the State Insurance Fund were made and accepted after she started suit. Claimant received compensation for approximately 10 months before asserting her claim, and continued thereafter to receive compensation for greater than two years until a remarriage lump-sum award was made. The payments for dependent children were doubled two years after the remarriage, and continue in that amount. Claimant, having filed for workers’ compensation benefits, and having received, accepted and retained such benefits, elected to take the statutory remedy and is, therefore, estopped from pursuing the alternative remedy of a civil action at law (Matter of Martin v C. A. Prods. Co., 8 NY2d 226). Defendant’s motion for summary judgment should have been granted, and the claim for intentional assault dismissed (Moakler v Blanco, 47 AD2d 614; Legault v Brown, 283 App Div 303; Doca v Federal Stevedoring Co., 280 App Div 940, affd 305 NY 648). In urging affirmance, the dissenters recognize that this is not the situation where the cause of action is against a coemployee not acting within the scope of his employment at the time he inflicted the injury, a situation not covered by the policy considerations of the compensation law on suits against employers (Maines v Cronomer Val. Fire Dept., 50 NY2d 535; Vercruysse v Alati, 78 AD2d 1015). They fail to recognize, however, the distinction between this situation and that where the plaintiff has not applied for and has not secured compensation payments (Jones v State of New York, 33 NY2d 275, supra; Smith v State of New York, 72 AD2d 937; Mazarredo v Levine, 274 App Div 122; Le Pochat v Pendleton, 271 App Div 964, affg 187 Misc 296; De Coigne v Ludlum Steel Co., 251 App Div 662). All concur, except Cardamone, J. P., and Callahan, J., who dissent and vote to affirm, in the following memorandum: