Melinda Merrill v. Albany Medical Center Hospital Et Al.

Melinda Merrill v. Albany Medical Center Hospital Et Al.

[71 N.Y.2d 990 Page 991] Opinion OF THE COURT Appeal dismissed, with costs. Jurisdiction for the appeal is predicated upon CPLR 5601 (a), which requires
that, at the Appellate Division, there be “a dissent by at least two justices on a question of law in favor of the party taking
[the] appeal”. Although the dissent in the present case purports to address questions of law, an examination of the full record
reveals that the arguments upon which the dissent is predicated were not raised by appellant in the trial court. While the
Appellate Division has jurisdiction to address unpreserved issues in the interest of justice, the Court of Appeals may not
address such issues in the absence of objection in the trial court. Accordingly, the dissent was not on a question of law
which would be reviewable by the Court of Appeals and the appeal must be dismissed (see, Sam & Mary Hous; Corp. v Jo/Sal
Mkt. Corp., 62 N.Y.2d 941; Guaspari v Gorsky, 29 N.Y.2d 891).

Melinda Merrill v. Albany Medical Center Hospital Et Al.



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