Key Takeaway
New York appellate courts apply inconsistent standards when deciding whether to hear unpreserved arguments for the first time on appeal, creating uncertainty for practitioners.
Understanding Preserved vs. Unpreserved Arguments in New York Appeals
In New York appellate practice, attorneys must generally raise all arguments at the trial court level to preserve them for appeal. However, appellate courts sometimes exercise discretion to consider arguments raised for the first time on appeal — though predicting when they’ll do so remains challenging.
The unpredictable nature of this doctrine particularly affects New York no-fault insurance law cases, where procedural missteps can have significant consequences for healthcare providers and insurers alike. Understanding these preservation requirements becomes crucial when dealing with complex insurance coverage disputes and declaratory judgment actions.
Jason Tenenbaum’s Analysis:
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.
Key Takeaway
The Appellate Term’s approach to unpreserved arguments remains frustratingly inconsistent. Courts make case-by-case determinations about whether to hear arguments not raised below, making it impossible to predict outcomes with certainty. This unpredictability underscores the importance of raising all potential arguments at the trial level to avoid waiver.
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Common Questions
Frequently Asked Questions
What is New York's no-fault insurance system?
New York's no-fault insurance system requires all drivers to carry Personal Injury Protection (PIP) coverage. This pays for medical expenses and lost wages regardless of who caused the accident, up to policy limits. However, you can only sue for additional damages if you meet the 'serious injury' threshold.
