Elliott Scheinberg. Courtesy photoCourt of Appeals and Appellate Division As Courts of First Instance
The author writes "Preservation in the court below is the nucleus of appellate practice. But what does the “the court below” mean? Is it limited to Supreme Court, Surrogate’s Court, etc., or can the Appellate Division be the court of first instance for the purposes of preservation? If “the court below” is limited in meaning to Supreme Court, etc., must preservation be complied with even if just as a “technical,” “hollow formality,” “a useless exercise,” where the court is without authority to adjudicate the issue or rather should “the court below,” of necessity, refer to the court that is first capable of rendering a determination of consequence on the issue? Sabine v State, 2024 NY Slip Op 06288 [2024] (Dec. 17, 2024), a matter of first impression, strikes a blow at the historical development of preservation."
January 02, 2025 at 10:00 AM
18 minute read
Preservation in the court below is the nucleus of appellate practice. But what does the “the court below” mean? Is it limited to Supreme Court, Surrogate’s Court, etc., or can the Appellate Division be the court of first instance for the purposes of preservation? If “the court below” is limited in meaning to Supreme Court, etc., must preservation be complied with even if just as a “technical,” “hollow formality,” “a useless exercise,” where the court is without authority to adjudicate the issue or rather should “the court below,” of necessity, refer to the court that is first capable of rendering a determination of consequence on the issue? Sabine v State, 2024 NY Slip Op 06288 [2024] (Dec. 17, 2024), a matter of first impression, strikes a blow at the historical development of preservation.
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