Allen M. Mitchell, Jr., et al., Respondents, v. Donald Howe, Doing Business as Learn & Play Childcare Center, et al., Respondents, and Kirst Construction, Inc., Appellant

Allen M. Mitchell, Jr., et al., Respondents, v Donald Howe, Doing Business as Learn & Play Childcare Center, et al., Respondents, and Kirst Construction, Inc., Appellant. [756 NYS2d 802] [MAJORITY] —Appeal from an order of Supreme Court, Erie County (Notaro, J.), entered August 13, 2002, which denied the motion of defendant Kirst Construction, Inc. for summary judgment dismissing the complaint and cross claims against it. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Supreme Court properly denied the motion of Kirst Construction, Inc. (defendant) for summary judgment dismissing the complaint and cross claims against it. Labor Law § 241 (6) “imposes liability upon a general contractor for the negligence of a subcontractor, even in the absence of control or supervision of the worksite” (Rizzuto v Wenger Contr. Co., 91 NY2d 343, 348-349 [1998] [emphasis omitted]; see Kane v Coundorous, 293 AD2d 309, 310-311 [2002]), and here there is an issue of fact whether defendant was acting as a general contractor to render it subject to liability under section 241 (6). Present — Pine, J.P., Wisner, Scudder, Kehoe and Burns, JJ.