We respectfully dissent and would reverse the order insofar as appealed from, grant defendants’ motion for summary judgment in its entirety and dismiss the amended complaint. We cannot agree with the majority on the record before us that there' is an issue of fact whether defendants violated 12 NYCRR 23-9.5 (c) (see generally O’Donnell v Buffalo-DS Assoc., LLC, 67 AB3d 1421, 1423 [2009], lv denied 14 NY3d 704 [2010]), and we thus would grant *1741that part of defendants’ motion with respect to the Labor Law § 241 (6) claim. We agree with the majority that plaintiff was a member of an excavating crew and was engaged in excavating work at the time he was injured. Defendants therefore established as a matter of law that they did not violate that portion of the regulation that provides that “[n]o person other than the pitman and excavating crew shall be permitted to stand within range of the back of a power shovel or within range of the swing of the dipper bucket while the shovel is in operation” (12 NYCRR 23-9.5 [c]). We disagree with the majority, however, that there is a triable issue of fact whether defendants violated that portion of the regulation that provides that, “[w]hen an excavating machine is not in use, the blade or dipper bucket shall rest on the ground or grade” (id.). At the time of the accident, plaintiff and a backhoe operator were digging holes in which to plant trees along the side of a parking ramp. The backhoe operator would dig dirt from the hole and then swivel the bucket to dump the dirt into a dump truck. Plaintiff stood nearby to sweep up any spilled dirt. Accepting plaintiffs version of the accident as true as we must on this motion by defendants for summary judgment (see Rizk v Cohen, 73 NY2d 98, 103 [1989]), we note that, according to plaintiff’s deposition testimony, plaintiff signaled to the backhoe operator that he was going to sweep the area after the backhoe operator dumped a bucket of dirt and that the backhoe operator responded, “okay.” However, after emptying the bucket of dirt into the dump truck, the backhoe operator swivelled the bucket back to the hole where plaintiff was standing in accordance with his signal to the backhoe operator, and the backhoe operator struck plaintiff. Thus, while plaintiffs deposition testimony established that the backhoe should not have been in use at the time of the accident, it undisputably was in use for purposes of defendants’ motion, i.e., accepting plaintiffs version of the accident as true. Although the regulation provides that when an excavating machine is not in use, the bucket must rest on the ground, here it was in use and thus the regulation was not violated. Present—Centra, J.P., Carni, Lindley, Green and Gorski, JJ.