Opinion
February 22, 1999
Appeal from the Supreme Court, Nassau County (Dunne, J.).
Ordered that the appeal from the order is dismissed, as its provisions were superseded by the provisions of the order and judgment; and it is further,
Ordered that the order and judgment is affirmed insofar as appealed from; and it is further,
Ordered that the defendant-respondent European-American Bank Trust Company is awarded one bill of costs.
In this trip and fall case, the defendant Town of Oyster Bay moved, and the defendant New York Telephone Company cross-moved, for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. The Supreme Court granted the Town's motion, denied the appellant's cross motion, dismissed the case against the Town, and severed the action against the remaining defendants.
The appellant's motion for summary judgment was properly denied solely on the ground that, at this stage of the action, triable issues of fact exist regarding the degree of control the appellant exercised over the subject construction work ( see generally, Zuckerman v. City of New York, 49 N.Y.2d 557).
The appellant's contentions concerning lack of notice and the culpable conduct of the injured plaintiff are improperly advanced for the first time on appeal ( see, Orellano v. Samples Tire Equip. Supply Corp., 110 A.D.2d 757) and, in any event, do not warrant an award of summary judgment in its favor on the present record.
Ritter, J. P., Sullivan, Altman and McGinity, JJ., concur.