Ayres v. Town of Monroe

Appeal (transferred to this court by order of the Appellate Division, Second Department) from an order of the Supreme Court (Hickman, J.), entered March 8, 1990 in Orange County, which, upon reargument, denied defendant Joseph Tortoriello’s motion for summary judgment dismissing the complaint against him.

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 AD2d 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.