Sher v. Allied Bayview Corp.

—In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Richmond County (Sangiorgio, J.), dated May 15, 1994, which denied their motion to serve an amended complaint adding Allied Princess Bay Company as an additional defendant, and which granted the defendant’s motion for summary judgment and dismissed the complaint insofar as it is asserted against the sole defendant Allied Bayview Corporation. The notice of appeal from a decision of the same court, dated October 22, 1991, is deemed a premature notice of appeal from the order and judgment (CPLR 5520 [c]). Ordered that the order and judgment is affirmed, with costs. The plaintiffs’ contention that the defendant Allied Bayview Corporation is estopped from denying ownership of the property where she was injured was never raised before the Supreme Court and thus may not be asserted for the first time on appeal (see, Marazzo v Frontier Ins. Co., 189 AD2d 755; Reyes v 38 Sickles St. Corp., 188 AD2d 518). In any event, we find this claim to be without merit. Nor have the plaintiffs demonstrated the existence of any genuine issues of material [537] fact so as to warrant the denial of the defendant’s motion. Sullivan, J. P., Miller, O’Brien and Krausman, JJ., concur.