Preservation is the foundation of appellate practice. Aside from the many exceptions to that rule, “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.” Rentways v. O’Neill Milk & Cream, 308 N.Y. 342 (1955).

“Preservation is not simply a meaningless technical barrier to review.” Wilson v. Galicia Contr. & Restoration, 10 N.Y.3d 827 (2008). An adverse party should have the opportunity to address an argument. Robles v. Brooklyn Queens Nursing Home, 131 A.D.3d 1032 (2d Dept. 2015). Nonetheless, “the Appellate Division may reach and decide issues which are not properly preserved.” Matter of Barbara C., 64 N.Y.2d 866 (1985); Merrill v. Albany Med. Ctr. Hosp., 71 N.Y.2d 990 (1988).