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Ozelkan v. Tyree Bros. Envtl. Servs., Inc.

29 A.D.3d 877 (2006)

815 N.Y.S.2d 265

TURK OZELKAN, Appellant, v. TYREE BROTHERS ENVIRONMENTAL SERVICES, INC., et al., Respondents.

Appellate Division of the Supreme Court of the State of New York, Second Department.

May 23, 2006.

Ordered that the order is affirmed, with costs.

"`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 those theories or questions been presented in the court of first instance'" (Weber v Jacobs, 289 A.D.2d 226, 227 [2001], quoting Fresh Pond Rd. Assoc. v Estate of Schacht, 120 A.D.2d 561

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