One of the most basic tenets of appellate practice is that a party cannot raise an argument on appeal if that party did not raise the argument before the trial court. In short, an appeal can be lost before it’s even begun. Given appeals are time-consuming and costly, particularly in New York’s First and Second Departments (where it can take over a year for an appeal to be fully briefed, argued, and decided), nothing is more cringe-worthy than reading an appellate decision shutting down an entire appeal with reasoning that the arguments raised on appeal were unpreserved because they were not presented to the trial court. This is why it is so important for attorneys to draft motions, particularly dispositive motions, with an eye toward the possibility of an appeal.
In Polini v Schindler Elevator Corp., one of the largest and most well respected litigation law firms in the world argued the appeal on behalf of the defendant-appellant Schindler Elevator Corporation (“Schindler”). In this personal injury action, the plaintiff claimed that a wood panel fell on her head after she exited an elevator in the lobby of a building in Manhattan while employees of the defendant-appellant Schindler were replacing a video monitor. It was undisputed that Schindler’s employees removed the wood panel and leaned it against a wall before it fell and hit the plaintiff on the head.
Ultimately, the plaintiff moved for summary judgment on the issue of liability as against Schindler before the trial court. In opposition, Schindler argued, among other things: (1) it had no duty of care towards Plaintiff; (2) it cannot be held liable for its employees’ negligent actions because removing the panel was outside the scope of its contract with the owners of the premises; (3) plaintiff was not a party to the contract; and (4) Plaintiff’s accident was not foreseeable and occurred due to an “Act of God” which was described as an unprecedented gust of wind knocking over the wood panel.
The trial court rejected Schindler’s arguments and granted plaintiff summary judgment on the issue of liability.
Schindler appealed the trial court’s decision, arguing, among other things, that (1) the wooden panel that its workers leaned against the wall was open and obvious; (2) plaintiff failed to use her senses to observe it; and (3) any barricades or warnings would not have prevented the accident.
Unfortunately, the prestige of the law firm representing Schindler on this appeal could not change what had been previously argued by the defendant-appellant in front of the trial court. In a short decision, the court summarily rejected Schindler's arguments on appeal because those arguments were unpreserved.
This decision serves as a reminder to attorneys that if you think you should raise an issue before the trial court, you better raise that issue before it's gone.