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MOTION FOR SUMMARY JUDGMENT DENIED IN CLAIM FOR INJURIES SUSTAINED IN FALL FROM FORKLIFT

Ciro Alfonso v. Pacific Classon Realty, LLC

Supreme Court of the State of New York, County of Kings

Index No. 12885/06

By Order dated September 20, 2011, Hon. Mark I. Partnow, Kings County Supreme Court, denied defendants’ motion for summary judgment.

Plaintiff was attempting to remove a heating unit from the ceiling of a warehouse, at the direction of his employer, when the unit fell.  The force of the falling unit caused plaintiff to fall off a skid, elevated by a forklift, to the ground.  Plaintiff suffered serious personal injuries as a result.  Plaintiff received an award from the Workers’ Compensation Board, against his employer, D.S. Imports, Inc.  Plaintiff filed suit against defendants, as property owners or agents, under N.Y. Labor Law § 240.

Defendants moved for summary judgment, arguing that Workers’ Compensation Law barred any action against Delmar Sales, Inc.

Judge Partnow found that defendants “failed to demonstrate, as a matter of law, that plaintiff was their special employee…or that they were alter egos of, or engaged in a joint venture with, DS Imports, plaintiff’s employer.”  Judge Partnow also found that Workers’ Compensation Law does not bar plaintiff’s claim “merely because the relevant entities are owned by the same principals.”

Finally, Judge Partnow held that the removal of a broken heating unit from the ceiling of the warehouse is akin to “repair,” and not routine maintenance.  Therefore, plaintiff’s claim is viable under Labor Law §240.

The plaintiff is represented by Todd J. Krouner and Diana M. Carlino of the Law Office of Todd J. Krouner in Chappaqua, New York.  For further information, please contact them at (914) 238-5800.  A copy of Judge Partnow’s Order and Decision is available here.