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Determinative, Purely Legal Arguments Raised for the First Time on Appeal May Be Considered by the Appellate Court

In the context of a mortgage foreclosure action, the First Department noted that arguments raised for the first time on appeal may be considered if the issues are determinative and present purely legal arguments without raising new facts.  Bank of NY v Arthur, 2015 NY Slip Op 01392, 1st Dept 2-17-15

 

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EASEMENT COVENANT CONCERNING A THREE INCH ENCROACHMENT WAS A PERMITTED EXCEPTION UNDER THE REAL ESTATE PURCHASE AGREEMENT AND COULD NOT SERVE AS A GROUND FOR DEMONSTRATING SELLER WAS NOT READY, WILLING AND ABLE TO SELL THE PROPERTY ON THE TIME OF THE ESSENCE DATE, SELLER ENTITLED TO SECURITY DEPOSIT AND ATTORNEY’S FEES (FIRST DEPT).
THE MOTION TO AMEND THE COMPLAINT WAS MADE BEFORE THE STATUTE OF LIMITATIONS RAN, BUT THE SUPPLEMENTAL SUMMONS WAS NOT ATTACHED TO THE MOTION PAPERS, THEREFORE THE STATUTE OF LIMITATIONS WAS NOT TOLLED BY THE MOTION (FIRST DEPT).
EXPERT AFFIDAVIT SUFFICIENT TO RAISE A QUESTION OF FACT WHETHER THE SCHOOL NURSE’S FAILURE TO TELL PLAINTIFF TO REMOVE A CONTRACEPTIVE DEVICE WAS A PROXIMATE CAUSE OF BLOOD CLOTS AND SEVERE BRAIN DAMAGE.
Plaintiff-Resident of an Adult Care Facility Did Not Have Standing to Object to An Informal Procedure Used by the Department of Health (DOH) Re: the Inspection of Adult Care Facilities (Affording a Meeting Between the Facility and DOH Prior to the Publication of an Inspection Report)—Standing to Challenge Governmental Action Discussed in Some Depth
THE AFFIDAVIT WHICH PURPORTED TO DEMONSTRATE PLAINTIFF HAD STANDING TO BRING THE FORECLOSURE ACTION REFERRED TO UNIDENTIFIED AND UNPRODUCED RECORDS AND THEREFORE LACKED ANY PROBATIVE VALUE (FIRST DEPT).
New York City Was Unable to Demonstrate Amendments to the Adult Use Zoning Regulations Were Necessary to Reduce the Negative Effects of Such Businesses on the Surrounding Areas–Therefore the Amendments Constituted an Unjustified Restriction on Speech
LETTER WRITTEN BY PETITIONER UPON INVOLUNTARY ADMISSION TO A HOSPITAL SHOULD HAVE BEEN SEEN AS A DEMAND FOR AN EXPEDITED CHALLENGE TO THE CONFINEMENT UNDER THE MENTAL HYGIENE LAW (HABEAS CORPUS), ALTHOUGH THE ISSUE IS MOOT IN THIS CASE, THE ISSUE WAS HEARD ON APPEAL BECAUSE IT IS LIKELY TO RECUR (FIRST DEPT).
EVIDENCE SUFFICIENT TO DEMONSTRATE BUS DRIVER SHOULD HAVE SEEN DECEDENT.

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