9.9 - C. Exceptions To Doctrine Of Preservation

• Jurisdiction: New York

C. Exceptions to Doctrine of Preservation

Only a few recognized exceptions to the doctrine of preservation exist. These exceptions fall under “narrowly drawn circumstances.”²⁰⁷² Following are some exceptions that arise in the civil context.

In narrow cases, an appellate court may review certain jurisdictional issues that were not raised at the trial level.²⁰⁷³ An appellate court may consider an argument raised for the first time on appeal if it is a purely legal issue.²⁰⁷⁴ A party or a court, sua sponte, may raise an issue that implicates public policy concerns for the first time at the appellate level.²⁰⁷⁵ Cases in which this exception has been invoked have concerned public policy violations with respect to impingement of the right to bargain in contract negotiations,²⁰⁷⁶ violation of the N.Y. Judiciary Law²⁰⁷⁷ and violation of the rule against perpetuities.²⁰⁷⁸

Although technically not an exception to the doctrine of preservation, the N.Y. Court of Appeals may review a question raised in the trial court even if the party did not argue it in the intermediate appellate court.²⁰⁷⁹

--------

Notes:

^[2072] . See Newman, supra note , § 2.02, at 2-8.

^[2073] . See In re Logan, 116 A.D. 146, 102 N.Y.S. 200 (1st Dep’t) (1906) (court could review objections to a certificate of election even though no objections were raised at the trial level), aff’d, 186 N.Y. 266, 79...