Hyperlawhypertext legal databasebeta Merrill v. Albany Medical Center Hospital 71 N.Y.2d 990

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Merrill v. Albany Medical Center Hospital

71 N.Y.2d 990 Court N.Y. Decision date 1988-05-03 English

Contents

Majority

p. 990
Melinda Merrill, an Infant, by Her Mother and Natural Guardian, Frances Merrill, et al., Respondents, v Albany Medical Center Hospital et al., Defendants, and Martin E. McKneally, Appellant.
Argued March 24, 1988;
decided May 3, 1988
p. 991
APPEARANCES OF COUNSEL
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.

OPINION OF THE COURT

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 NY2d 941 ; Guaspari v Gorsky, 29 NY2d 891 ).

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