Tucciarello v. Ironwil Associates — 202 A.D.2d 1039

Majority

p. 1039

Peter E. Tucciarello et al., Respondents, v Ironwil Associates, Appellant and Third-Party Plaintiff. Lechters Housewares, Inc., et al., Third-Party Defendants-Appellants.

(Appeal No. 1.)

[612 NYS2d 981]

—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.

Cases cited

Suarez v. City of New York 186 AD2d 415 N.Y. App. Div. 1992-10-13 p. 1039
William Iselin & Co. v. Landau 71 NY2d 420 N.Y. 1988-03-22 at 425 p. 1039
Zuckerman v. City of New York 49 NY2d 557 N.Y. 1980-04-01 at 562 p. 1039