Nardozzi v. Piotrowski

—Appeal from an order of Supreme Court, Erie County (Mahoney, J.), entered October 9, 2001, which, inter alia, denied defendants’ motion to dismiss the complaint. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Plaintiffs commenced this negligence action seeking damages for injuries that Anthony Nardozzi (plaintiff) allegedly sustained as a result of a motor vehicle accident. Supreme Court denied defendants’ motion to dismiss the complaint pursuant to CPLR 3216 for failure to prosecute. The sole contention of defendants on appeal is that the court erred in denying their motion on the ground that plaintiffs failed to establish that plaintiff sustained a serious injury and thus failed to show a good and meritorious cause of action in opposition to defendants’ motion (see 3216 [e]). That contention, raised for the first time on appeal, is not properly before us (see Murach v Island of Bob-Lo Co., 290 AD2d 180, 182). Present—Pine, J.P., Hurlbutt, Kehoe, Gorski and Lawton, JJ.