Bernhard P. Takacs, an Infant, by His Mother and Natural Guardian, Rita Takacs, et al., Appellants, v. Food Stop Markets, Inc., et al., Respondents, et al., Defendants. Drackett Products Company et al., Third-Party Plaintiffs, v. Attila Takacs, Third-Party Defendant

Bernhard P. Takacs, an Infant, by His Mother and Natural Guardian, Rita Takacs, et al., Appellants, v Food Stop Markets, Inc., et al., Respondents, et al., Defendants. Drackett Products Company et al., Third-Party Plaintiffs, v Attila Takacs, Third-Party Defendant. [MAJORITY] Order, Supreme Court, New York County, entered August 11, 1977, which granted plaintiffs’ motion for reargument of defendants’ prior motion for leave to serve an amended answer asserting the exclusive remedy of workmen’s compensation as an affirmative defense, and for a stay of plaintiffs’ action pending a determination by the New York Workmen’s Compensation Board of the employment status of the infant plaintiff, and which, upon reargument, adhered to the original determination granting defendants’ motion, unanimously modified, on the law and facts, without costs or disbursements, to the extent of vacating the stay and except as thus modified, affirmed. We do not interpret O’Rourke v Long (41 NY2d 219) as requiring a stay of a judicial proceeding, pending resolution of a plaintiff’s employment status by the Workmen’s Compensation Board, in the absence of a workmen’s compensation claim or proceeding. The infant plaintiff has never asserted a workmen’s compensation claim for the injuries which he alleges he sustained on August 6, 1971. In such circumstances, the court is a jurisdiction-ally competent forum to determine the issue of the exclusivity of workmen’s compensation as a remedy. Concur—Lupiano, J. P., Fein, Lane, Markewich and Sullivan, JJ.