Sampson v Rainbow Ford Lincoln Mercury, Inc.
2009 NY Slip Op 02093 [60 AD3d 1362]
March 20, 2009
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 6, 2009


P. Marc Sampson, Respondent, v Rainbow Ford Lincoln Mercury, Inc., Appellant-Respondent, and Daniel Lang, Respondent, et al., Defendant. Rainbow Ford Lincoln Mercury, Inc., Third-Party Plaintiff-Appellant-Respondent,
v
P. Marc Sampson, Doing Business as Sampson Auto Sales, Third-Party Defendant-Respondent-Appellant.

—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker LLP, Albany (Douglas R. Kemp of counsel), for defendant-appellant-respondent and third-party plaintiff-appellant-respondent.

Chelus, Herdzik, Speyer & Monte, P.C., Buffalo (Michael F. Chelus of counsel), for third-party defendant-respondent-appellant.

John J. Flaherty, Williamsville, for plaintiff-respondent.

Gibson, McAskill & Crosby, LLP, Buffalo (Norman B. Viti, Jr., of counsel), for defendant-respondent.

Appeal and cross appeal from an order of the Supreme Court, Cattaraugus County (Larry M. Himelein, A.J.), entered December 5, 2007 in a personal injury action. The order denied the motion of defendant-third-party plaintiff for summary judgment and denied the motion of third-party defendant for summary judgment.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: We affirm for reasons stated in the decision at Supreme Court. We write only to note that the contention of defendant and third-party plaintiff that Workers' Compensation Law § 29 (6) bars plaintiff's action against it is raised for the first time on appeal, and we therefore do not consider it (see Oram v Capone, 206 AD2d 839, 840 [1994]). Present—Martoche, J.P., Centra, Carni and Gorski, JJ.