You are here: / / An Issue Raised for the First Time on Appeal Will Not Be Considered Where...
,

An Issue Raised for the First Time on Appeal Will Not Be Considered Where the Defect Could Have Been Cured If Raised Below/Trial Court Can Grant Summary Judgment Based on an Unpleaded Defense

The Fourth Department noted that it can not consider an argument raised for the first time on appeal where the defect could have been remedied it been raised below and explained when summary judgment can be granted (by the trial court) on the basis of an unpleaded defense:

…[W]e do not address plaintiff’s contention, raised for the first time on appeal, that Supreme Court erred in granting summary judgment in defendant’s favor because defendant failed to plead the defense of failure to comply with a condition precedent with sufficient specificity (see CPLR 3015 [a]). “An issue may not be raised for the first time on appeal . . . where it ‘could have been obviated or cured by factual showings or legal countersteps’ in the trial court” …. Here, defendant could have attempted to cure that alleged deficiency by seeking leave to amend the answer … . In any event, defendant’s failure to plead that defense in its answer with sufficient specificity does not preclude an award of summary judgment based on that defense. “ ‘[A] court may grant summary judgment based upon an unpleaded defense where[, as here,] reliance upon that defense neither surprises nor prejudices the plaintiff’ ” Accadia Site Contracting Inc v Erie County Water Authority, 325, 4th Dept 3-28-14

 

You might also like
THE PLAINTIFF SHOULD NOT HAVE BEEN ALLOWED TO CROSS EXAMINE THE DEFENSE EXPERT USING DECEDENT’S HUSBAND’S DEPOSITION IN THIS NEGLIGENCE AND PUBLIC-HEALTH-LAW VIOLATION CASE; THE DECEDENT’S HUSBAND, A NONPARTY, WAS AVAILABLE TO TESTIFY; THE PLAINTIFF’S VERDICT SHOULD HAVE BEEN SET ASIDE (FOURTH DEPT).
Criteria for Setting Aside a Defense Verdict Not Met
SUPREME COURT DID NOT WEIGH THE CONFLICTING EXPERT TESTIMONY ABOUT WHETHER PETITIONER SEX-OFFENDER SUFFERED FROM A MENTAL ABNORMALITY REQUIRING CONFINEMENT PURSUANT TO THE MENTAL HYGIENE LAW; MATTER SENT BACK FOR A NEW HEARING BEFORE A DIFFERENT JUDGE (FOURTH DEPT).
QUESTION OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS LEGAL MALPRACTICE ACTION; THE ATTORNEY HAD ATTEMPTED TO REMEDY THE FAILURE TO FILE OBJECTIONS IN AN ESTATE MATTER AFTER THE STATUTE HAD RUN; ABSENCE OF AN EXPERT’S REPORT FROM THE RECORD ON APPEAL PRECLUDED A RULING ON THE RELATED ISSUE (FOURTH DEPT).
UNDER THE DEALER ACT, GENERAL MOTORS WAS NOT REQUIRED TO NOTIFY PLAINTIFF CHEVROLET DEALERSHIP OF GM’S APPROVAL OF THE RELOCATION OF ANOTHER CHEVROLET DEALERSHIP IN THE SAME AREA.
PORTIONS OF THE RESPONDENTS’ APPRAISAL REPORT IN THIS CONDEMNATION PROCEEDING SHOULD NOT HAVE BEEN STRUCK BECAUSE THE PROPER VALUATION METHOD WAS USED; THE EVIDENTIARY RULING ON THE MOTION IN LIMINE IS APPEALABLE BECAUSE THE RULING AFFECTS THE SCOPE OF THE TRIAL ISSUES (FOURTH DEPT).
RECORDED STATEMENTS MADE TO THE MOTHER OF DEFENDANT’S CHILDREN, WHO WAS ACTING AS A POLICE AGENT AT THE TIME THE STATEMENTS WERE MADE, REQUIRED THE REOPENING OF THE HUNTLEY HEARING, CASE REMITTED.
IT WAS FORESEEABLE THAT DIESEL FUMES FROM A BOOM LIFT USED BY PLAINTIFF FOR INTERIOR PAINTING WOULD ACCUMULATE AND CAUSE DIZZINESS RESULTING IN PLAINTIFF’S FALL FROM THE LIFT; PLAINTIFF’S LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Criteria for Judicial Review of Agency’s Action Under the State Environmental... Action for Attorney Deceit Originated in New York Common Law, Not Statutory...