Opinion
January 3, 1991
Appeal from the Supreme Court, Orange County (Hickman, J.).
Plaintiffs' assertions in opposition to the motion for summary judgment were sufficient to raise questions of fact as to whether the excavation work of defendant Joseph Tortoriello at the site of the accident took place before or after the accident occurred (see, Bershaw v Altman, 100 A.D.2d 642). Therefore, Supreme Court's denial of Tortoriello's motion for summary judgment was in all respects proper. Tortoriello's remaining contentions have been considered and found to be without merit.
Order affirmed, without costs. Mahoney, P.J., Weiss, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.