This is a case being heard in the Supreme Court of Kings County. The plaintiffs, through a verified complaint, state that around the 26th of September, 2006, the plaintiff was severely injured when he was operating equipment on the premises of the first defendant of the case. The premise is owned by the second defendant in the case. The defendants are seeking an order granting them a summary judgment in the case that dismisses the action.
The plaintiff’s have alleged three causes of action in their verified complaint. The first cause of action alleges that the injury that was sustained by the plaintiff was caused by the negligence of the defendant for failing to keep the machinery maintained. The final cause of action states that the wife of the plaintiff was deprived of the services, society, love, affection, and consortium of her husband as a result of the injury. The plaintiffs also allege that the defendants were put on written notice that the machinery in question was needed as evidence but failed to preserve the machinery. The plaintiffs state that they have not been allowed to inspect the machinery in any way as evidence to support their case.
The defendants are seeking to have the causes of action against them dismissed. They argue that the plaintiff has failed to state a cause of action and that the alleged claims are barred by exclusivity provisions under the Workers’ Compensation Law. As noted, the plaintiff was employed by the defendants at the time he was injured.
The defendants have submitted an affidavit from the president of the company who was also an employee that was injured on the job. The affidavit shows that the employee applied for and received workers compensation for his injuries. The defendants have not submitted any evidence to show that the plaintiff has received worker’s compensation benefits or that they have workers’ compensation coverage.
Case Discussion and Decision
In a case for summary judgment it is well established that the person/persons pursuing this type of judgment must establish prima facie to show that there are no triable issues of fact in regard to the case.
The defendants have failed to establish prima facie that they are entitled to dismissal based on the Workers’ Compensation Law. However, the court notes that the plaintiffs have not addressed their opposition to this aspect of the defendant’s motion.
Even if the defendants had raised prima facie to support their case for summary judgment, the plaintiffs in the case have raised several triable issues of fact in this case. The plaintiffs have offered written proof that they have asked to inspect the equipment and the letters have remained unanswered.
For the reasons above and other facts that have been presented in this case the court is denying the motion of the defendant. The defendants are given leave to renew after appropriate disclosure including the examination before trial of the plaintiff.
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