Preservation is the foundation of appellate review. Generally, an argument not presented to the court below may not be raised on appeal. “[I]t is settled that a ruling on an application must be reviewed in respect of the arguments made before the motion court and not on the basis of some novel contention.” Wald v. Marine Midland Bus. Loans, 270 A.D.2d 73, 75 (1st Dept. 2000). “[T]he requirement of preservation is not simply a meaningless technical barrier to review.” Wilson v. Galicia Contr. & Restoration, 10 N.Y.3d 827, 829 (2008). “The very theory and constitution of a court of appellate jurisdiction only is the correction of errors which a court below may have committed; and a court below cannot be said to have committed an error when their judgment was never called into exercise, and the points of law were never taken into consideration but was abandoned by the acquiescence or default of the party who raised it.” Flake v. Van Wagenen, 54 N.Y. 25, 27 (1873). “It is, indeed, a rule, that questions not raised at the trial court, which might have been obviated by the action of the court then, or by that of the other party, will not be heard on appeal as ground of error.” Telaro v. Telaro, 25 N.Y.2d 433, 438 (1969). However, there are exceptions to this this rule which permit appellate courts to hear specific categories of arguments first time on appeal, a random sampling of which follows. See E. Scheinberg, The New York Civil Appellate Citator, NYSBA, 2d ed, 2022.

The essence of this article is who may raise such sanctioned arguments first time on appeal, the appellant, the respondent, or both? We digress from the answer to this question to examine several sanctioned categories.