Johnson v. Freeport Union Free School District

255 A.D.2d 294, 679 N.Y.S.2d 322, 1998 N.Y. App. Div. LEXIS 11595

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 2, 1998
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the defendant Freeport Union Free School District appeals from an order of the Supreme Court, Nassau County (Winslow, J.), dated January 23, 1998, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is affirmed, with costs.

The plaintiffs have raised triable issues of fact (see, CPLR 3212 [b]) as to whether the appellant retained control over the premises where the accident occurred and whether the appellant properly maintained the premises.

The appellant’s claim that it cannot be held liable because the injuries sustained by the plaintiff Jayson Johnson resulted from the intervening act of a third person is raised for the first time on appeal, and therefore we decline to reach it (see, Murray v Palmer, 229 AD2d 377; Shelton v Shelton, 151 AD2d ). Mangano, P. J., Joy, Friedmann and Goldstein, JJ., concur.