Opinion
June 10, 1998
Appeal from Order of Supreme, Court, Onondaga County, Mordue, J. — Summary Judgment.
Present — Green, J. P., Pine, Hayes, Callahan and Fallon, JJ.
Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied that part of defendants' motion for summary judgment dismissing the Labor Law § 241 Lab. (6) and common-law negligence causes of action against defendant John Neubauer. Although defendants met their initial burden, plaintiff raised issues of fact precluding summary judgment with respect to those causes of action (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562). While it is undisputed that the worksite at which plaintiff was excavating was located at defendants' residence, there is sharply conflicting evidence regarding the nature and character of Joan Neubauer's participation in the excavation efforts. We conclude that there are issues of fact whether John Neubauer controlled or supervised plaintiff's, work, thereby precluding summary judgment not only on the Labor Law cause of action but also on the common-law negligence cause of action (see, Young v. Krawczyk, 223 A.D.2d 966, 967-968; Maracle v. DiFranco, 197 A.D.2d 877).