Opinion
No. CA 08-01956.
March 20, 2009.
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.
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.
Before: Martoche, J.P., Centra, Carni and Gorski, JJ.
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).