AuthorShoot, Brian J.

    We all learn, starting sometime in law school, how critical it is to preserve one's arguments and objections in the nisi prius court. Yet, there is an arcane area of New York practice in which a party benefits from having not preserved his or her winning argument for appellate review and may even prevail on that ground. Such is what occurred in Hecker v. State, (1) a ruling that surprised much of the appellate bar.

    Hecker was a personal injury action that concerned the defendant's alleged violation of section 241(6) of the Labor Law of the State of New York. (2) "Claimant's employer had contracted... to perform rehabilitation work on an historic lift bridge[.]" (3) Some months after the completion of the work, it was "necessary to replace defective components in a lift mechanism [thirty] feet below the ground." (4) Claimant was shoveling snow in order to access the pit when he slipped and sustained injury. (5)

    Claimant's Labor Law claim was premised on the defendant's alleged violation of 12 NYCRR 23-1.7(d). (6) That regulation stated that an employer "shall not suffer or permit any employee to use a floor, passageway, [or] walkway... [that] is in a slippery condition. Ice, snow, [and] water... [that] may cause slippery footing shall be removed, sanded or covered to provide safe footing." (7) Claimant's theory was that the condition that caused him to slip violated the regulation and that he thereby had a valid claim under Labor Law section 241(6). (8)

    Defendant moved for summary judgment, arguing that since "snow removal was an integral part of [the] claimant's work[,]" claimant should not be permitted to charge defendant with a regulatory violation that was, in essence, the very condition that claimant had been tasked to ameliorate. (9) The Court of Claims agreed and dismissed the complaint on that ground. (10)

    Claimant appealed to the Appellate Division, Fourth Department. (11) All five judges who heard the case agreed that the argument advanced for dismissal in the Court of Claims lacked merit. (12) The appellate division nonetheless affirmed by a 3-2 vote on a different ground. (13) Although the argument had not been made below or even in the appellate division itself, the appellate division majority sua sponte ruled that the regulation was inapplicable on the ground that the claimant was not using the area in issue as "a floor, passageway or walkway at the time of his fall[.]" (14)

    The two appellate division dissenters disagreed both with the ruling itself and with the majority's very decision to reach and address the unpreserved argument for dismissal. (15) As to the former, the dissenters felt that "[i]nasmuch as the pit door was located on the sidewalk and was the only way to access the underground work site,... claimant was using a passageway or walkway within the meaning of the regulation!.)" (16) As to the latter, the dissenters, quoting from the Court of Appeals' 2009 ruling in Misicki v. Caradonna, opined: "We should not be 'in the business of [blindsiding] litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made.'" (17)

    Having lost by a 3-2 vote in the appellate division on what was plainly an issue of law (i.e., whether the area in issue was a "floor, passageway[,] or walkway" within the meaning of the regulation), claimant appealed as of right to the Court of Appeals. (18) It was there that the curious anomaly that is the subject of this article split the Court of Appeals. However, before proceeding further with our tale of Mr. Hecker's very bad litigation experience, it is necessary to first consider the general rules concerning unpreserved issues of law, and, more particularly, the distinction between appellate division review and Court of Appeals review of unpreserved issues of law.

    Even in the appellate division, the familiar rule on an appeal in a civil case is that the appellate court will generally consider only those arguments and claims that were preserved for appellate review by timely assertion or objection in the nisi prius court. (19) In some instances--including, for example, alleged error in the giving or failure to give a particular jury instruction--the preservation prerequisite is statutory. (20) Yet, the very statement that the appellate division will "generally" consider those arguments and claims that were preserved for appellate review implies that there are also exceptions in which the appellate division can and will consider unpreserved arguments and claims. Such is indeed the case.

    Although the appellate division's discretion to consider unpreserved issues is apparently not limitless, (21) it is long settled that the appellate division may in its discretion consider unpreserved issues. (22) The preservation prerequisite is, in other words, a rule of practice from which the appellate division can, and sometimes does, depart for reasons such as the unpreserved error was so significant that it was "fundamental," (23) or of such nature that it could not have been obviated by timely objection, (24) or that review is warranted in the interests of justice, (25) or, in at least one case, the legal argument that prevailed at nisi prius was "patently" lacking in merit. (26)

    By contrast, while the Court of Appeals considers unpreserved arguments and claims in certain discrete circumstances that we will soon explore in some detail, it has repeatedly been said that it does not share the appellate division's capacity to consider unpreserved claims or arguments based upon a simple exercise of its discretion. (27) The Court of Appeals does not (at least not expressly) consider unpreserved issues in the "interest of justice." (28)

    With that necessary preamble, we now return to the case of Kenneth Hecker, who slipped while shoveling snow. (29) As noted above, the appellate division affirmed the dismissal of the complaint, but did so on a ground that had not been argued at nisi prius or even in the appellate division itself. (30) As we now know from the case law noted above, the appellate division has the authority to consider unpreserved arguments and claims even though it does not generally choose to do so. Plaintiff appealed as of right to the Court of Appeals based upon the two-judge dissent in the appellate division. (31) It was here that precedent and circumstances combined to bring about a result that confounded policy and surprised even the parties themselves.

    Can the Court of Appeals consider an argument or claim that was not preserved in the nisi prius court but was nonetheless considered in the appellate division and in fact served as the basis for the appellate division's ruling in the case? I think that most attorneys, including those generally familiar with the principles of appellate preservation, would assume that the answer is "yes." Even acknowledging that the appellate division could have refused to consider the unpreserved argument, and even supposing that the Court of Appeals would not consider the unpreserved argument if the appellate division had not done so first, the very fact that the appellate division had chosen to consider the matter and had then premised its ruling on the unpreserved argument should, one would think, make the issue of law reviewable in the Court of Appeals. (32)

    That was exactly what the litigants in Hecker thought. As was noted in these pages a couple of years ago, (33) the defendant (who had benefitted from the appellate division ruling) urged that the issue had been preserved for appellate review, obviously assuming that such was necessary for affirmance. (34) Meanwhile, the claimant argued that the issue had not been preserved for appellate review, evidently assuming that such contention, if credited, would dictate reversal of the appellate division ruling. (35)

    But the Hecker court figured differently. Without reaching whether the appellate division's ruling was correct or erroneous, the Court of Appeals majority ruled that the legal argument concerning whether the:

    [A]rea in which plaintiff suffered his injury was a 'floor, passageway [or] walkway' within the meaning of 12 NYCRR 23-1.7(d) was not preserved in the Court of Claims, and the appellate division's ruling must be deemed an exercise of its interests of justice jurisdiction[, and thus, w]e have no power to review either the appellate division's exercise of its discretion to reach that issue, or the issue itself. (36) Judge Smith, joined by Judge Pigott, concurred on the different ground that the appellate division majority was correct on the merits. (37) In doing so, they added that the rule on which the majority had relied--the rule to the effect that the Court of Appeals lacked the "power" to consider the unpreserved issue on its merits--was "a bad one" that the court "should be prepared to reconsider... in a future case." (38) In their view, the matter in issue, whether preserved or unpreserved, was still an issue of law, (39) stating: "The appellate division's unreviewable, discretionary choice to reach the issue [did] not make the issue itself any less one of law." (40)

    In thus criticizing the grounds on which the majority affirmed the result below, Judge Smith fully acknowledged that long settled Court of Appeals practice evidenced a disinclination to consider unpreserved issues, and also that the disinclination to consider unpreserved issues had sometimes been loosely characterized as the product of a jurisdictional limitation. (41) However, he felt that the rule was, at bottom, nothing more than a rule of practice and, in fact, a rule of practice to which the court had not adhered "with any consistency." (42) Citing Judge Pigott's dissent in People v. Knowles, (43) Judge Smith attributed the confusion to the misapplication of "a statute limited to criminal cases"--a charge we shall examine more closely below. (44)

    Judge Smith's concurrence in...

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