Tucciarello v. Ironwil Associates

202 A.D.2d 1039, 612 N.Y.S.2d 981

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 11, 1994
• Docket: Appeal No. 1
• Status: Published

Opinion

—Judgment unanimously affirmed with costs. Memorandum: The jury’s award of damages to plaintiffs does not deviate materially from what would be reasonable compensation (see, CPLR 5501 [c]; Suarez v City of New York, 186 AD2d 415).

Supreme Court properly granted summary judgment to fourth-party defendant Wilmorite, Inc. (Wilmorite) and dismissed the fourth-party complaint. Wilmorite met its burden of establishing its defense "sufficiently to warrant the court as a matter of law in directing judgment” in its favor (CPLR 3212 [b]) by demonstrating that it issued no instructions prohibiting the use of hydraulic or scissor lifts at the job site. The fourth-party plaintiff failed to meet its burden of producing evidentiary proof in admissible form sufficient to require a trial of material questions of fact (see, Iselin & Co. v Mann Judd Landau, 71 NY2d 420, 425; Zuckerman v City of New York, 49 NY2d 557, 562). (Appeals from Judgment of Supreme Court, Monroe County, Frazee, J. — Labor Law.) Present— Green, J. P., Pine, Fallon, Callahan and Boehm, JJ.