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Remet Corporation v. Estate of James R. Pyne

Remet Corporation v. Estate of James R. Pyne

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Hancock Estabrook, LLP, Syracuse (Janet D. Callahan of Counsel), and Troutman Sanders, Chicago, Illinois, for Plaintiff-Appellant.Neil M. Gingold, Fayetteville, for Defendants-Respondents.Appeal from a judgment (denominated order) of the Supreme Court, Oneida County (Patrick F. MacRae, J.), entered October 3, 2017. The judgment, among other things, granted defendants’ motion for partial summary judgment.It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.Memorandum: We affirm the order in appeal No. 1 and the judgment in appeal No. 2 for reasons stated in the decisions at Supreme Court. We add only that plaintiff improperly contends, for the first time on appeal, that it is entitled under the provisions of Section 8.1 (a) (ii) of the operative Purchase and Sale Agreement to indemnification for the attorneys’ fees it has incurred in prosecuting this action for indemnification (Remet Corp. v. Estate of Pyne, 26 NY3d 58 [2015]; see generally Oram v. Capone, 206 AD2d 839, 840 [4th Dept 1994]; Ciesinski v. Town of Aurora, 202 AD2d 984, 985 [4th Dept 1994]). “It is well settled that ‘[a]n 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 those theories or questions been presented in the court of first instance’” (Ciesinski, 202 AD2d at 985). Here, there is a possibility that defendants, through either proof or legal countersteps, could have refuted or overcome plaintiff’s newly raised theory of recovery had it been presented at the appropriate time (see Oram, 206 AD2d at 840; Ciesinski, 202 AD2d at 985).

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