From the Appellate Term Second Department: Unpreserved legal argument is welcome

New York’s civil procedure rules include preservation requirements that generally bar appellate courts from considering arguments not raised before the trial court. These preservation rules serve important judicial efficiency goals by ensuring that trial courts have the opportunity to address legal issues before appellate review. They also prevent parties from sandbagging opponents by withholding arguments until appeal, when the opposing party has no opportunity to respond or develop a contrary record.

The Appellate Term’s decision in Ortho Products & Equipment, Inc. v Interboro Insurance Co. addresses what happens when a respondent includes new legal arguments in an appellate brief that were never raised in the trial court. The appellant insurance company moved to strike these unpreserved arguments from the respondent’s brief, setting up a procedural question about the scope of appellate review and whether courts should entertain issues raised for the first time on appeal.

Case Background

Ortho Products & Equipment brought a no-fault action against Interboro Insurance Company seeking reimbursement for medical equipment provided to accident victims. After an adverse order from the Civil Court of Kings County, the appellant filed a notice of appeal. During the appellate briefing process, the respondent included certain legal arguments in paragraphs 8, 9, 12, 13, 14, and 15 of its brief that had apparently not been raised before the trial court.

The appellant moved to strike these paragraphs from the respondent’s brief, arguing that the Appellate Term should not consider matters that were not properly preserved through presentation to the trial court. The respondent did not file opposition papers to the motion to strike, leaving the Appellate Term to decide the preservation issue without briefing from both sides.

Jason Tenenbaum’s Analysis:

Ortho Prods. & Equip., Inc. As Assignee of Daniel Robinson, Nicholas Manickchand & Bradley Forbes v Interboro Ins. Co., 2012 NY Slip Op 61416(U)

Appellate Term of the Supreme Court

of the State of New York for the 2nd, 11th & 13th judicial Districts

MICHELLE WESTON, J.P.

MICHAEL L. PESCE

JAIME A. RIOS, JJ.

DECISION & ORDER ON MOTION

2011-551 K C

Motion by appellant on an appeal from an order of the Civil Court of the City of New York, Kings County, entered December 16, 2010, to strike paragraphs 8, 9, 12, 13, 14 and 15 from the respondent’s brief.

Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it is

ORDERED that the motion is denied.

It is noted that this court will not consider any matter that is dehors the record (see Chimarios v Duhl, 152 AD2d 508 ).

I do not know why this Court could not do what the Appellate Division does and refer this motion to the panel of judges hearing the appeal. Orders like this embolden sloppy Civil Court work with the incentive that on appeal the court will allow the Appellant or Respondent to raise unpreserved legal argument in and get away with it.

Unreal.

Legal Significance

The Appellate Term’s denial of the motion to strike has significant implications for preservation doctrine in New York civil litigation. By refusing to strike the unpreserved arguments from the respondent’s brief, the court left open the possibility that it might consider those arguments when deciding the appeal. This creates uncertainty about whether preservation rules will be strictly enforced and whether parties can successfully raise new issues on appeal.

The court did note that it “will not consider any matter that is dehors the record,” citing Chimarios v Duhl, 152 AD2d 508. This reference to matters outside the record provides some limitation on appellate consideration of new issues. However, it does not directly address whether the court will consider legal arguments that were not raised below but that relate to matters in the record. There is a difference between introducing new factual material not in the record and presenting new legal theories based on existing record evidence.

The decision contrasts unfavorably with Appellate Division practice, where motions to strike portions of briefs are typically referred to the panel hearing the appeal for decision. This approach allows the judges who will actually decide the case to evaluate whether specific arguments should be considered. By deciding the motion to strike separately without referencing it to the panel, the Appellate Term created a procedural disconnect that may lead to inconsistent results.

The practical effect of this ruling may be to encourage parties to include unpreserved arguments in appellate briefs, hoping that appellate courts will entertain them despite preservation defects. This undermines the preservation doctrine’s purpose of ensuring orderly trial court proceedings and focused appellate review. It also creates unfair surprise for opposing parties who may not have had the opportunity to develop contrary evidence or argument at the trial level.

Practical Implications for Attorneys and Litigants

For practitioners appearing before the Appellate Term, this decision suggests that preservation requirements may not be strictly enforced. Parties should consider including arguments in appellate briefs even if those arguments were not raised below, as the court may entertain them despite preservation defects. However, this strategy carries risks: if the appellate panel does apply preservation doctrine strictly, unpreserved arguments may be ignored, and including them may distract from preserved issues.

For Civil Court litigants and their counsel, the decision highlights the importance of thorough trial court practice. Rather than relying on preservation doctrine to limit the scope of appeals, parties should assume that any issue remotely related to the record may be raised on appeal. This means developing comprehensive records and addressing potential issues preemptively, even if opposing counsel has not raised them.

The decision also illustrates a procedural problem in Appellate Term practice. Unlike the Appellate Division, which refers motions to strike to the merits panel, the Appellate Term may decide these motions separately. This creates the possibility that the court will deny a motion to strike but then apply preservation doctrine to ignore the challenged arguments anyway. Parties should be aware of this disconnect and perhaps address preservation issues in their substantive briefs rather than relying solely on motions to strike.

Insurance companies and healthcare providers engaged in no-fault litigation should take note that sloppy Civil Court practice may not be punished on appeal through strict application of preservation doctrine. This may encourage more aggressive appellate advocacy, with parties attempting to raise issues that were not fully litigated below. It also means that victories in Civil Court may be less secure than in other forums where preservation doctrine is more rigorously applied.

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