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Current Developments in the Commercial Divisions of the
New York State Courts
Posted: August 4, 2018

Appellate Division Refuses to Consider Legal Question Raised for the First Time on Appeal

On August 1, 2018, the Second Department issued a decision in Colonial Sur. Co. v. Advanced Conservation Sys., Inc., 2018 NY Slip Op. 05570, refusing to consider a legal argument raised for the first time on appeal, explaining:

The defendants’ contentions are raised for the first time on appeal and do not involve a pure question of law that appears on the face of the record and could not have been avoided by the plaintiff if brought to the attention of the Supreme Court. Therefore, they are not properly before this Court.

(Internal citations omitted)

This decision illustrates a rule that frustrates appellants in complex cases: if a legal issue is not raised in the trial court, the appellate court may refuse to consider it on appeal. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client face a situation where you are unsure whether an argument can be raised on appeal.

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