KLIMKIEWICZ v. JWA FURNITURE COMPANY (1998)

In an action to recover damages for personal injuries, etc., the defendant, JWA Furniture Company, appeals from an order of the Supreme Court, Kings County (Rappaport, J.), dated January 21, 1997, which, upon renewal, denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff Krzysztof Klimkiewicz was injured when several four feet by eight feet melamine boards being moved by the defendant's employees slipped and fell on his head.   We agree with the Supreme Court that there is an issue of fact with respect to whether the defendant's employees were acting within the scope of their employment when the injury occurred (see, Riviello v. Waldron, 47 N.Y.2d 297, 418 N.Y.S.2d 300, 391 N.E.2d 1278).   While the boards that fell on the injured plaintiff belonged to one of the employees, who was planning to use the boards for a private project, they were being stored in a common area directly outside the defendant's shop, the defendant's principal had purchased the boards for the employee, and, as was his practice, had given the employee permission to do the project in the defendant's shop and to use its tools.

MEMORANDUM BY THE COURT.