9.6 - 1. Determinative New Legal Issues

• Jurisdiction: New York

1. Determinative New Legal Issues

Courts will consider new legal issues that are determinative and that could not have been obviated or cured by legal countermeasures even if they had been raised in the trial court. Such issues generally are not subject to the preservation requirement.²⁰⁶⁰

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Notes:

^[2060] . See id. (Appellate Division appropriately ruled in premises liability case on the basis of GOL § 9-103, even though the state first raised the defense on appeal); Misicki v. Caradonna, 12 N.Y.3d 511, 526, 882 N.Y.S.2d 375 (2009) (Smith, J. dissent) (“Exceptions to the preservation requirement in civil cases . . . are, for understandable reasons, much more rare than in criminal cases, but they do exist.”); Telaro v. Telaro, 25 N.Y.2d 433, 306 N.Y.S.2d 920 (1969), reargument denied, 26 N.Y.2d 751 (1970) (in an action to recover a certain brokerage account between an ex-wife and ex-husband, the wife was entitled to raise her res judicata argument before the Court even though she had not been able to raise it in the courts below)...