Torts · MBE-tested

James Pope et al., Appellants, v. Nestles USA, Inc., et al., Respondents

281 A.D.2d 890722 N.Y.S.2d 197·New York Supreme Court, Appellate Division·2001·NY

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Opinion

James Pope et al., Appellants, v Nestles USA, Inc., et al., Respondents. [722 NYS2d 197] [MAJORITY] —Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in granting that part of the cross motion of defendant Angelo Spadotto Construction, Inc. (Spadotto) seeking summary judgment dismissing the cause of action alleging common-law negligence and the violation of Labor Law § 200. There is an issue of fact whether Spadotto controlled the manner and method of the work of plaintiff James Pope (see, Colella v Donaldson, 261 AD2d 912), thus precluding an award of summary judgment on that cause of action (see, Zuckerman v City of New York, 49 NY2d 557, 562). We therefore modify the order by denying the cross motion in part and reinstating that cause of action. (Appeal from Order of Supreme Court, Onondaga County, Murphy, J. — Summary Judgment.) Present — Pigott, Jr., P. J., Green, Hayes, Burns and Lawton, JJ.