SOUTH v. METROPOLITAN TRANSPORTATION AUTHORITY (2019)

Orders, Supreme Court, Bronx County (Norma Ruiz, J.), entered August 7, 2018, which denied plaintiffs Wayne Gavonich's and Craig South's motions for summary judgment on their Labor Law § 240(1) claims, unanimously reversed, on the law, without costs, and the motions granted. Orders, same court (Lucindo Suarez, J.), entered on or about April 17 and 18, 2019, which denied third-party defendant Iron Bridge Constructors, Inc.'s motions pursuant to CPLR 1010 and 603 to dismiss or, in the alternative, sever the third-party actions as against it, unanimously reversed, on the facts, without costs, and the motions to sever granted.

Plaintiffs Gavonich and South established prima facie that defendants are liable for their injuries under Labor Law § 240(1) by submitting evidence that they fell to the ground and were injured when the lift truck upon which they were working moved when it was struck by a passing bus (Alomia v. New York City Tr. Auth., 292 A.D.2d 403, 405, 738 N.Y.S.2d 695 [2d Dept. 2002]; see Zengotita v. JFK Intl. Air Term., LLC, 67 A.D.3d 426, 889 N.Y.S.2d 545 [1st Dept. 2009]; Dos Santos v. State of New York, 300 A.D.2d 434, 751 N.Y.S.2d 577 [2d Dept. 2002]). Moreover, the lift truck, which was being used as an elevated work platform, lacked a guardrail to prevent falls (see Celaj v. Cornell, 144 A.D.3d 590, 42 N.Y.S.3d 25 [1st Dept. 2016]). In opposition, defendants failed to raise an issue of fact. They rely instead on hearsay evidence as to how the accident may have occurred. Such hearsay evidence alone is insufficient to defeat a motion for summary judgment (Ying Choy Chong v. 457 W. 22nd St. Tenants Corp., 144 A.D.3d 591, 592, 42 N.Y.S.3d 116 [1st Dept. 2016]).

Given defendants' unexplained, extensive delays in commencing the third-party actions after discovery had been completed and the trial-ready posture of all three main actions, Iron Bridge's motion to sever the third-party actions as against it should have been granted (see Garcia v. Gesher Realty Corp., 280 A.D.2d 440, 721 N.Y.S.2d 343 [1st Dept. 2001]; Cusano v. Sankyo Seiki Mfg. Co., 184 A.D.2d 489, 584 N.Y.S.2d 324 [2d Dept. 1992]).

Motion to stay trial pending determination of the appeal denied as academic.