Island Life Chiropractic, P.C. v Unitrin Auto & Home Ins. Co., 2016 NY Slip Op 51076(U)(App. Term 2d Dept. 2016)
“Island Life’s contention on appeal, in essence, that defendant Unitrin was not in privity with Kemper, and, thus, that the order in the declaratory judgment action in favor of Kemper has no preclusive effect in the instant action against Unitrin, is unpreserved for appellate review, because plaintiff failed to raise the issue in the Civil Court”
This case is interesting because the Appellate Term will sometimes allow unpreserved argument to be raised for the first time appeal and, other times, will explicitly disallow unpreserved argument to be raised on appeal. While I wish I could give a list of unpreserved argument that could be raised on appeal, I cannot. This is an ad hoc and sui generis determination, and your guess is as good as mine.
