Academic journal article Albany Law Review

The Legislature's Power to Correct the Anomaly of Benefitting from a Failure to Preserve an Argument for Appellate Review

Academic journal article Albany Law Review

The Legislature's Power to Correct the Anomaly of Benefitting from a Failure to Preserve an Argument for Appellate Review

Article excerpt


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. …

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