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Merrill v. Albany Medical Center Hospital, McKneally

Court of Appeals of the State of New York
May 3, 1988
71 N.Y.2d 990 (N.Y. 1988)

Opinion

Argued March 24, 1988

Decided May 3, 1988

Appeal from the Supreme Court, Albany County, Edward S. Conway, J.

John B. McCrory and Domenick L. Gabrielli for appellant.

Mark B. Wiesen for respondents.

Thomas R. Newman and Howard R. Cohen for FOJP Service Corporation and others, amici curiae. Brian J. Shoot and Arnold L. Kleinick for New York State Trial Lawyers' Association, amicus curiae.


Appeal dismissed, with costs. Jurisdiction for the appeal is predicated upon CPLR 5601 (a), which requires that, at the Appellate Division, there be "a dissent by at least two justices on a question of law in favor of the party taking [the] appeal". Although the dissent in the present case purports to address questions of law, an examination of the full record reveals that the arguments upon which the dissent is predicated were not raised by appellant in the trial court. While the Appellate Division has jurisdiction to address unpreserved issues in the interest of justice, the Court of Appeals may not address such issues in the absence of objection in the trial court. Accordingly, the dissent was not on a question of law which would be reviewable by the Court of Appeals and the appeal must be dismissed (see, Sam Mary Hous. Corp. v Jo/Sal Mkt. Corp., 62 N.Y.2d 941; Guaspari v Gorsky, 29 N.Y.2d 891).


Summaries of

Merrill v. Albany Medical Center Hospital, McKneally

Court of Appeals of the State of New York
May 3, 1988
71 N.Y.2d 990 (N.Y. 1988)
Case details for

Merrill v. Albany Medical Center Hospital, McKneally

Case Details

Full title:MELINDA MERRILL, an Infant, by Her Mother and Natural Guardian, FRANCES…

Court:Court of Appeals of the State of New York

Date published: May 3, 1988

Citations

71 N.Y.2d 990 (N.Y. 1988)
529 N.Y.S.2d 272
524 N.E.2d 873

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