While, generally, an argument may not be raised for the first time on appeal, the Court may review a question of law presented for the first time on appeal if it appears on the face of the record and could not have been avoided if it had been raised at the proper juncture. Here, there is case law supporting the proposition that a plaintiff moving for summary judgment on the issue of liability on a cause of action alleging a violation of section BC 3309.4 must show, prima facie, that the plaintiff granted the requisite license for the defendant to access, inspect, and protect its property. As the defendants, in effect, are challenging the plaintiffs' legal showing on their summary judgment motion, as opposed to challenging the sufficiency of the plaintiffs' evidence in support of their motion, the defendants' argument is reviewable, even though it is raised for the first time on appeal.
211-12 N. Blvd. Corp. v. LIC Contr., Inc., NY Slip Op 04134
Here is the decision.
