9.3 - 1. Fairness

• Jurisdiction: New York

1. Fairness

As noted, one portion of the doctrine of preservation rests on a fairness consideration. The doctrine ensures that the opposing party has a chance to respond to an issue or argument with admissible evidence and a pertinent legal argument.²⁰⁵³ Indeed, courts have held that new fact questions or legal theories will not be considered on appeal if proof might have been offered to obviate or refute those issues had they been presented below.²⁰⁵⁴ Moreover, as the Appellate Division stated, “appellate courts cannot and will not review an issue that has never been raised by the parties themselves.”²⁰⁵⁵

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Notes:

^[2053] . See, e.g., JF Capital Advisors, LLC v. Lightstone Grp., LLC, 25 N.Y.3d 759, 16 N.Y.S.3d 222 (2015) (concluding that statute...