As Justice Felix Frankfurter aptly observed, “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.” See Henslee v. Planters National Bank & Trust Co., 335 U.S. 595, 600 (1949). 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.” In contrast, the Court of Appeals has no equivalent interest of justice jurisdiction; the scope of its review is limited to “questions of law only” (CPLR 5501[b]).
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