Can you Make New Arguments on Appeal in New York?

General Rule

Generally, no, you cannot make new arguments on appeal in New York. The doctrine of preservation precludes Appellate Courts in New York from considering arguments or factual assertions brought up for the first time on appeal.

Exception to the General Rule

There is a rare exception to the preservation doctrine. This exception states that an appellate court may consider new arguments on appeal when the issue raised for the first time on appeal is an issue of law which could not have been avoided had it been raised at the court below. For this exception to apply, the issue must be one of “pure” law, as opposed to issues involving questions of fact.

Cases
Right Aid Med. Supply Corp. v. Travelers Ins. Co., 64 Misc. 3d 149 (N.Y. App. Div. 2019) (“we do not consider arguments or factual assertions raised for the first time on appeal”).

Revis v. Schwartz, 140 N.Y.S.3d 68, 192 A.D.3d 127 (N.Y. App. Div. 2020) (“An exception does exist, however, when an issue raised for the first time on appeal is an issue of law which could not have been avoided had it been raised below. For the exception to apply, the issue must be one of “pure” law untethered to any question of fact”)

More Help

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Word of Caution — The law and its processes may be very complex and have significant consequences. It is best to always seek advice and help from a licensed lawyer.