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

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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 N.E. 78 (1906).

^[2074] . See Branham v. Loews Orpheum Cinemas, Inc., 31 A.D.3d 319, 323, n. 2, 819 N.Y.S.2d 250 (1st Dep’t 2006); Tower Ins. Co. of N.Y. v. Zaroom, 145 A.D.3d 556, 44 N.Y.S.3d 32 (1st Dep’t 2018).

^[2075] . See Niagara Wheatfield Adm’rs Ass’n v. Niagara Wheatfield Cent. Sch. Dist., 44 N.Y.2d 68, 404 N.Y.S.2d 82 (1978) (Court could review a threshold question concerning whether the subject public employees’ contract was void as against public policy even though the appellant raised the question for the first time before the Court); Schacker v. Schacker, 43 A.D.3d 1029, 1030, 841 N.Y.S.2d 695 (2d Dep’t 2007) (court considered prejudgment interest in context of an action for a divorce and ancillary relief even though neither party raised the issue); Ungar v. Matarazzo Blumberg & Assocs., P.C., 260 A.D.2d 485, 688 N.Y.S.2d 588 (2d Dep’t 1999) (court sua sponte could review the issue of whether an agreement between a nonlawyer and an attorney to split the legal fee was prohibited under the Judiciary Law even though the parties had not raised the issue); Brousal v. Schmukler, 154 A.D.2d 494, 546...