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
DEFENDANT DID NOT MAKE AN UNEQUIVOCAL REQUEST TO REPRESENT HIMSELF; THEREFORE THE JUDGE WAS NOT REQUIRED TO CONDUCT A SEARCHING INQUIRY TO DETERMINE WHETHER DEFENDANT’S REQUEST WAS KNOWING, VOLUNTARY AND INTELLIGENT; A TWO-JUSTICE DISSENT DISAGREED (FOURTH DEPT).
THE WAIVER OF INDICTMENT WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT PRECISELY IDENTIFY WHICH OF TWO UNDERLYING OFFENSES IT DESCRIBED AND DID NOT PROTECT AGAINST DOUBLE JEOPARDY (FOURTH DEPT).
DEFENDANT’S REQUEST FOR A DARDEN HEARING SHOULD HAVE BEEN GRANTED, PEOPLE DID NOT DEMONSTRATE INFORMANT WAS LEGITIMATELY UNAVAILABLE (FOURTH DEPT).
THE STATUTE OF LIMITATIONS FOR THIS SLIP AND FALL CASE WAS SUSPENDED DURING THE COVID TOLLS, RENDERING THE ACTION TIMELY (FOURTH DEPT). ​
LEGAL SENTENCE FOR A PERSISTENT FELONY OFFENDER DRASTICALLY REDUCED IN THE INTEREST OF JUSTICE PURSUANT TO A MOTION FOR A WRIT OF CORAM NOBIS BASED UPON APPELLATE COUNSEL’S FAILURE TO CONTEND THE SENTENCING COURT ABUSED ITS DISCRETION (FOURTH DEPT).
Admissibility of Medical Records as Business Records Does Not Preclude Evidentiary Objections to Admission
CHILD SUPPORT STANDARDS ACT (CSSA) WAS INCORRECTLY APPLIED TO INCOME ABOVE THE STATUTORY CAP (FOURTH DEPT).
HEARING NECESSARY ON THAT ASPECT OF DEFENDANT’S MOTION TO VACATE THE JUDGMENT OF CONVICTION WHICH ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL, DEFENDANT ALLEGED DEFENSE COUNSEL TOLD THE JURY DEFENDANT WOULD TESTIFY WITHOUT FIRST CONSULTING WITH DEFENDANT (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 © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Trial Court Properly Pierced the Corporate Veil/Criteria for Review of a Bench... Commissioner of Education Has Primary Jurisdiction Over Dispute About the Appropriate...