In a case involving an assessment by defendant against plaintiff under the Federal Power Act for costs associated with a hydropower plant, dams and reservoirs, the Third Department noted that none of defendant’s arguments on appeal could be addressed because they were not raised below:
On appeal, defendant makes none of the arguments raised in connection with the motions before Supreme Court. Instead, defendant now argues that plaintiff failed to state a cause of action for a refund by failing to allege that it paid the unauthorized assessments under protest. However, “[a]n appellate court should not, and will not, consider different theories or new questions, if proof might have been offered to refute or overcome them had they been presented at the trial [level]” … . By raising this issue for the first time on appeal, defendant has deprived plaintiff of the opportunity to provide evidence of any protest. The issue is, therefore, not properly before us, and we decline to consider it (see CPLR 5501 [a] …). Similarly, defendant’s contention that equity does not support a finding of unjust enrichment is also fact-intensive and, as such, it too was required to be raised before Supreme Court in order to be preserved for appellate review … .
Also unpreserved is defendant’s alternative argument that the action is time-barred … . Although listed as an affirmative defense in the answer, defendant did not pursue dismissal of the action on this ground … . Nor is this an issue of law that may be addressed for the first time on appeal, as plaintiff responds that it would be entitled to a toll of the statute of limitations based on the ongoing administrative proceedings and we must agree that the question of whether a statute of limitations is tolled raises factual issues … . Inasmuch as there are steps that plaintiff might have taken to counter the statute of limitations defense if it had been raised before Supreme Court, the issue is not properly before us and, again, we decline to consider it … . Albany Engineering Corp v Hudson River/Black River Regulating District, 516220, 3rd Dept 10-17-13