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Elliott ScheinbergElliott Scheinberg ()

The recent case Powell v. City of New York, 146 A.D.3d 701 (1st Dept. 2017), is a brow furrowing lesson to the unwary would-be appellant that within the fundamental appellate principles of preservation of issues and aggrievement, perceived as absolute and immutable, lurks a potential trap. At Powell‘s epicenter lies the perfect intersection of storms of CPLR 5701(a)(1) (appealability as of right), CPLR 4404(a), and CPLR 4406 (not cited in the decision), the latter two combining to bar an albeit properly preserved issue at trial from appellate review where a party has brought a post trial motion for a new trial or a directed verdict based on different grounds but did not raise the other unrelated preserved issue in the motion.

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