As Justice Felix Frankfurter aptly observed, “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.”1 With certain limited exceptions, however, issues raised for the first time on appeal will not be considered as grounds for a reversal or modification. There is an element of unfairness about seeking to reverse a judgment on a point not called to the attention of the trial court or intermediate appellate court, and on which the court was not given an opportunity to rule or correct its asserted error. Furthermore, the preservation requirement affords the opposing party an opportunity to make a necessary factual showing or take available legal countersteps.

Because the Appellate Division has the power to review both “questions of law and questions of fact” (CPLR 5501[c]), as well as questions involving the exercise of judicial discretion, that court has inherent power to consider a point raised for the first time on appeal in “the interest of justice.”2 The Appellate Division rarely exercises its discretionary interest of justice jurisdiction; it all depends on the facts of the case and how sympathetic the court feels toward the appellant’s position. Generally, the Appellate Division focuses on whether the belatedly challenged ruling constituted a “fundamental error” that prevented proper consideration of a core issue, and thus, materially affected the outcome of the proceedings. Absent fundamental error, the court will not exercise its interest of justice jurisdiction, and the ruling in question—even if erroneous—becomes the law of the case.

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