Preservation

Sam v. Town of Rotterdam Rentways v. O'Neill Milk & Cream

It is quite true that an appellate court should not, and will not, consider different theories or new questions, if proof might have been offered to refute or overcome them had they been presented at the trial.

Wilson v. Galicia Contracting & Restoration Telaro v. Telaro Rentways

Thus, it has been said: 'if a conclusive question is presented on appeal, it does not matter that the question is a new one not previously suggested. No party should prevail on appeal, given an unimpeachable showing that he had no case in the trial court.'

People v. Knowles People v. Newman American Sugar Refining Co. of New York v. Waterfront Commission of New York Harbor In re Will of Schuyler

Standing Is a Threshold Issue

In re Estate of Palma Community Board 7 of Borough of Manhattan v. Schaffer

“The various tests that have been devised to determine standing are designed to ensure that the party seeking relief has a sufficiently cognizable stake in the outcome so as to 'cast[ ] the dispute in a form traditionally capable of judicial resolution,'” Community Board 7 of Borough of Manhattan, quoting Society of Plastics Industry v. County of Suffolk, 77 NY2d 761 (1991)).

Saratoga County Chamber of Commerce v. Pataki

It is a threshold issue. If standing is denied, the pathway to the courthouse is blocked. ... The rules governing standing help courts separate the tangible from the abstract or speculative injury, and the genuinely aggrieved from the judicial dilettante or amorphous claimant.

Society of Plastics Industry v. County of Suffolk Association for a Better Long Island v. New York State Department of Environmental Conservation Wells Fargo Bank Minnesota, National Association v. Mastropaolo Silver v. Pataki In re Part 60 RMBS Put-Back Litigation

“Capacity requires an inquiry into the litigant's status, i.e., its 'power to appear and bring its grievance before the court' (Community Bd. 7 of Borough of Manhattan v. Schaffer, supra at 155 ... ), while standing requires an inquiry into whether the litigant has 'an interest in the claim at issue in the lawsuit that the law will recognize as a sufficient predicate for determining the issue at the litigant's request.' ... While capacity to sue and standing are different legal concepts, they have been used interchangeably.”

Security Pacific National Bank v. Evans

Standing, Subject Matter Jurisdiction

Montella v. Bratton Fry v. Village of Tarrytown Fossella v. Dinkins Dougherty v. City of Rye Prudco Realty v. Palermo People v. Stith

The First Department: Standing Is Jurisdictional

Stark v. Goldberg Allen v. Wright

“Standing goes to the jurisdictional basis of a court's authority to adjudicate a dispute” ... Therefore, the derivative action is properly subject to sua sponte dismissal despite the lack of any assertion by defendants of an objection to plaintiffs' standing (Axelrod v. New York State Teachers' Retirement System, 54 A.D.2d 827 ... (3rd Dept. 1989).)

Murray v. State Liquor Authority People ex rel. Spitzer v. Grasso Uhlfelder v. Weinshall People v. Knowles Fleischer v. New York State Liquor Authority Delgado v. New York City Board of Education,

The First Department: Standing Is Not Jurisdictional

Mortgage Electronic Registration Systems v. Gifford

“Whether the action is being pursued by the proper party is an issue separate from the subject matter of the action or proceeding, and does not affect the court's power to entertain the case before it” ... The Supreme Court is a court of general jurisdiction, and indisputably has the power to entertain mortgage foreclosure actions, including “issues regarding the defense of lack of capacity or standing and waiver, had those issues been timely raised.”

Security Pacific National Bank v. Evans

We cannot agree with [the] conclusion that a lack of standing divests the court of subject matter jurisdiction over the action. “The question of subject matter jurisdiction is a question of judicial power: whether the court has the power, conferred by the Constitution or statute, to entertain the case before it” (Matter of Fry, 89 N.Y.2d at 718 ... ). Because New York's Supreme Court “is a court of original, unlimited and unqualified jurisdiction” (Kagen v. Kagen, 21 N.Y.2d 532, 537 ... (1968)), it is competent to entertain all causes of action, including mortgage foreclosure actions. The Court of Appeals and lower appellate courts [] have consistently held that pursuant to CPLR 3211(e), the failure to raise the defense of lack of standing in a motion to dismiss or answer results in a waiver of such defense.

Elliott Scheinberg is a member of New York State Bar Association committee on courts of appellate jurisdiction. He is the author of "Contract Doctrine and Marital Agreements in New York," NYSBA, (3d ed. 2016). He is also a fellow of the American Academy of Matrimonial Lawyers.