9.7 - 2. Pure Questions Of Law Or Statutory Interpretation

• Jurisdiction: New York

2. Pure Questions of Law or Statutory Interpretation

Pure questions of law or statutory interpretation may be raised for the first time on appeal because their resolution does not hinge on the record evidence.²⁰⁶¹ Even so, the new issue may be reached only if it could not have been avoided by a factual showing or legal countersteps had the issue been raised below.²⁰⁶²

In re Richardson v. Fieldler Roofing, Inc.²⁰⁶³ involved an issue that could not have been obviated by facts or legal countersteps. In that case, the N.Y. Court of Appeals considered a question of statutory interpretation that the employer raised neither at the administrative nor the appellate level. The claimant in Richardson²⁰⁶⁴ filed for workers’ compensation death benefits because the claimant’s decedent died from a fall off a roof during his employment. The decedent and a coworker were at their workplace on a roof waiting for material to arrive. With no work to do, the decedent and the coworker moved a distance on the roof to remove copper downspouts from the building to sell for scrap. While doing so, the decedent slipped on some ice and fell to his death.

The New York Workers’ Compensation Board affirmed the administrative law judge’s finding that the accident occurred during the course of the decedent’s employment and that his death was causally related to it, and it awarded benefits to the decedent’s five minor children. A divided Appellate Division affirmed the board’s decision.²⁰⁶⁵

On appeal, the decedent’s employer and its insurer raised, for the first time at the Court of Appeals, that the claimant was excluded from compensation benefits under the Workers’ Compensation Law, as a matter of law, if the decedent was engaged in an illegal activity at the time of the accident. The Court concluded that it could consider the sole question of statutory interpretation even though the employer and insurer raised it for the first time at the Court. The Court rejected the employer’s and insurer’s interpretation of the Workers’ Compensation Law and affirmed the Appellate Division holding.²⁰⁶⁶

The Court of Appeals in Bingham v. New York City Transit Authority²⁰⁶⁷ warned that even pure questions of statutory law would not be deemed to be preserved for review if raised for the first time during the action before the Court when the question could have been avoided below by factual showings or legal countersteps.²⁰⁶⁸ Bingham involved a plaintiff who tripped on a staircase leading to a New York...