In Barber v. Crout-Woodard, 224 AD3d 966 (3d Dept. 2024), a conversion and replevin action against a real property owner, the plaintiff attempted to raise an unjust enrichment theory of liability for the first time on appeal. The Appellate Division declined to entertain this new argument, following the longstanding principle 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." Id. at 967 (citation omitted). The court noted that "a finding of unjust enrichment is also fact-intensive and, as such, it was required to be raised before Supreme Court in order to be preserved for appellate review." Id. (citation omitted). Barber is one of the latest in a long line of cases invoking the preservation requirement to prevent the blindsiding of an adverse party.

There is an element of unfairness about seeking to reverse an order or judgment on a point of law not called to the trial court's attention and on which the court was not given the opportunity to rule and thereby correct its asserted error. Therefore, generally, to be available as a basis for review and reversal of a judgment on appeal, the issue relied on must have been raised in the trial court and not for the first time on appeal. An issue that might have been obviated by the submission of documentary evidence to the motion court may not be raised for the first time on appeal. First Intl. Bank v. Blankstein & Son, 59 NY2d 436, 447 (1983); Tortorello v. Carlin, 260 AD2d 201, 205 (1st Dept. 1999).