Robbins v. Emery

268 A.D.2d 515, 701 N.Y.S.2d 664, 2000 N.Y. App. Div. LEXIS 689

Opinion

—In a consolidated action to recover damages for personal injuries, the defendants Jimmie Eugene Emery and Nicholas Emery appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (Sangiorgio, J.), dated March 30, 1999, as denied their cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs.

We agree with the Supreme Court that the defendants Valerie Diehl and Daniel Dugan raised triable issues of fact sufficient to defeat the cross motion of Jimmie Eugene Emery and Nicholas Emery (hereinafter the appellants). The appellants waived any objection to the competency of the submissions made in opposition to their cross motion by failing to challenge them before the Supreme Court. Accordingly, their objection cannot be raised for the first time on appeal (see, Mackenzie v Rothschild, 267 App Div 989; Republic Chem. Corp. v United Sterling Corp., 205 Misc 730, 732, affd 281 App Div 1018). Bracken, J. P., Santucci, Altman, Friedmann and H. Miller, JJ., concur.