Walking the Line: When New Arguments Can Be Raised on Appeal, by Adrienne B. Koch

New York Law Journal (August 21, 2020)

It’s a situation most appellate counsel have faced: a client lost in the lower court, and there is a powerful argument for reversal that was not raised below. This is a problem, because appellate courts generally will not reverse based on an argument that was not presented in the lower court. And with good reason: Lower courts adjudicate issues in the first instance, and should be reversed only when they make a mistake in assessing what is presented to them. If the lower court was not given the chance to pass on the argument, it is hard to claim that it made a mistake.

Nevertheless, in some circumstances an appellate court will consider an argument even if it was not presented in the lower court. The Appellate Division, for example, has broad “jurisdiction to address unpreserved issues in the interest of justice.” Merrill by Merrill v. Albany Med. Cntr. Hosp., 71 N.Y.2d 990, 991 (1988). On the other hand, the Court of Appeals “may not address such issues in the absence of objection in the trial court.” Id.

Although on occasion the Court of Appeals will remit a matter to the Appellate Division to enable that court to address an unpreserved issue under its “interest of justice jurisdiction” (see, e.g., Eujoy Realty Corp. v. Van Wagner Communications, LLC, 22 N.Y.3d 413, 423 n.4 (2013)), this distinction generally means that appellate counsel has substantially more latitude in the Appellate Division than in the Court of Appeals. It can also mean that arguments that were actually raised and considered in the Appellate Division may not be considered by the Court of Appeals. See Merrill, supra. And in all events, “interests of justice” arguments are highly subjective; not surprisingly, they are made far more often than they are accepted

There are other exceptions, however, that are more objective and apply routinely in both courts. This article explores some of those situations.

Issues of Law

The most common situation where an appellate court might consider an argument raised for the first time on appeal is where it involves “a question of law apparent on the face of the record, which could not have been avoided if raised at the proper juncture”—that is, where there is nothing the opposing party could have done below to make a factual record that would change the resolution of the issue. See 41 Clinton Avenue Corp. v. Silver, 150 A.D.3d 1053, 1054 (2d Dept. 2017).

The Appellate Division regularly exercises its authority to review new arguments on this basis, “as long as the issue is determinative and the record on appeal is sufficient to permit review.” See Watson v. City of New York, 157 A.D.3d 510, 511 (1st Dept. 2018). This rule applies with equal force in the Court of Appeals. See Rivera v. Smith, 63 N.Y.2d 501, 516, n.5 (1984) (collecting authorities).

In pursuing this, however, counsel must walk a fine line. Legal arguments depend on facts—and if the new argument turns on facts that were “not brought to [the opposing party’s] attention below,” the appellate court will decline to review it. See Ramirez v. Almah, LLC, 169 A.D.3d 508, 509 (1st Dept. 2019). But if the new legal argument can be crafted in a way that is fully supported by the existing record and “could not have been avoided” if it had been raised below, it may lead to a reversal.

Summary Judgment

Another situation in which an appellate court might consider an argument not raised below arises in appeals from orders granting summary judgment. The standard for such a motion is well-settled: the moving party bears the prima facie burden of showing through evidentiary proof that it is entitled to judgment as a matter of law. If it provides that proof, the motion will be granted unless the opponent demonstrates (again with evidence) that a material issue of fact exists. But if the moving party fails to meet its initial prima facie burden, the motion must be denied “regardless of the sufficiency of the opposing papers.” Both the Court of Appeals and the Appellate Division will readily enforce this rule. See, e.g., Winegrad v. New York University Med. Cntr., 64 N.Y.2d 851, 853 (1985).

This creates a dichotomy: although an argument that goes to whether the opposing papers sufficiently rebutted the moving party’s prima facie case generally cannot be raised for the first time on appeal, one that goes to whether the moving party met its prima facie burden in the first place always can be. Dorsey v. Les Sans Culottes, 43 A.D.3d 261 (1st Dept. 2007), illustrates this point. There, the plaintiff sued a restaurant for injuries she suffered when she slipped on a floor mat; she claimed that grease and dirt under the mat caused a dangerous condition. On its motion for summary judgment, the defendant restaurant relied on the owner’s deposition testimony to establish its standard practices with respect to cleaning the floor.

In opposing the motion, the plaintiff argued that this very testimony established that the restaurant’s employees must have known about the condition of the mat because they would have seen it when they cleaned the floor. The lower court granted summary judgment, finding that the restaurant had “made its prima facie showing concerning the creation of the condition, actual notice, and constructive notice” and the plaintiff had not proffered sufficient evidence to defeat that showing. Dorsey v. Les Sans Culottes, 2005 WL 5959726 (Sup. Ct. N.Y. Co. Dec. 2, 2005).

Reversing, the Appellate Division held that because the restaurant’s owner was in France on the day of the accident his testimony could not constitute admissible evidence of what happened that day. 43 A.D.3d at 261. Because this was a defect in the moving party’s prima facie case, it required reversal “without regard to the sufficiency of plaintiff’s opposition papers” in the lower court. Id. The plaintiff was thus able to obtain a reversal based on the inadmissibility of evidence she had affirmatively embraced below.

The lesson of a case like Dorsey is that on an appeal from an order granting summary judgment it pays to look carefully at the evidence on which the motion was based. If there is a problem with that evidence, it can be argued as a basis for reversal even if it was not argued below.

New Arguments on Reply

Another situation where an appellate court might reverse based on an argument that was not made below is where a new argument was made on reply in the lower court. It is generally considered error to grant a motion based on such an argument; “[a]rguments advanced for the first time in reply papers are entitled to no consideration by a court”. Clearwater Realty Co. v. Hernandez, 256 A.D.2d 100, 102 (1st Dept. 1998) (collecting cases; citations and internal quotations omitted). This is a rule of fairness: a motion should not be granted based on arguments the opposing party had no opportunity to address. But its enforcement necessarily requires the appellate court to consider an argument that was not raised below—that is, the appeal challenges an argument the appellant did not address in the lower court, precisely because it had no opportunity to do so.

A lower court’s consideration of an argument raised for the first time on reply does not always warrant reversal. Courts have discretion to consider such arguments where no prejudice will result—such as where the opposing party is actually given an opportunity to respond, or does not “contend that it would have offered additional or different evidence in opposing the argument.” See Burlington Ins. Co. v. Guma Constr. Corp., 66 A.D.3d 622, 624-25 (2d Dept. 2009); accord Eujoy, supra, 22 N.Y.3d at 422. It follows that appellate counsel wishing to challenge such an argument must persuade the court both that the appellant was given no such opportunity and that it “would have offered additional or different evidence” (or arguments) if it had been. If appellate counsel can make such a showing, the challenge will likely be considered.


Appellate counsel generally may not stray far from the arguments that were advanced below. Much of the time, this will mean that a new argument should ultimately find its way to the cutting room floor so that limited brief space can be allocated to those the court will actually consider. But there may be a lane for a new argument if it can be pitched in a way that fits within an exception to that general rule, and finding that lane may mean the difference between affirmance and reversal.

Adrienne B. Koch is a litigation partner with Katsky Korins in New York.

Reprinted with permission from the August 21, 2020 edition of the “New York Law Journal” © 2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.