Sampson v. Rainbow Ford Lincoln Mercury, Inc.

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 *1363denied 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 plaintiffs 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, Garni and Gorski, JJ.