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TWO DISSENTERS ARGUED THE UNPRESERVED ISSUE, WHICH INVOLVED SETTLED LAW, SHOULD NOT HAVE BEEN CONSIDERED ON APPEAL (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, considered an unpreserved issue on appeal (the date from which prejudgment interest begins to run). The dissenting justices argued the unpreserved issue involved settled law and there was, therefore, no reason to consider it:

The majority assumes that the issue is unpreserved but reaches the merits of claimant’s contention through application of an exception to the preservation rule … . In other words, on this appeal as of right from a final judgment (see CPLR 5701 [a] [1]), the majority is not limiting this Court’s scope of review to those matters brought up for review pursuant to CPLR 5501 (a). We respectfully disagree with the majority to the extent that it elects to address an unpreserved issue of statewide interest inasmuch as it does nothing more than adhere to this Court’s well-settled and decades-long precedent on that particular issue . In short, under the circumstances of this case, we disagree with the majority’s decision to invoke what should be a very rare exception to rules of preservation only just to double down on our long-standing precedent. Indeed, by reaching claimant’s contention challenging that precedent, the majority fails to fully recognize that the policy reasons underlying the preservation rule, and the … rarity of times when we except from it, are “especially acute when the new issue seeks change in a long-established common-law rule,” as is the case here … . Sabine v State of New York, 2023 NY Slip Op 01455, Fourth Dept 3-17-23

Practice Point: The majority considered an unpreserved issue on appeal which involved a well-settled area of the law. Two dissenters argued the case did not justify ignoring the preservation requirement, which should be a rare occurrence reserved to new issues seeking change in the common law.

 

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