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DeBENEDICTIS v. MALTA

1374, 602537/08.

140 A.D.3d 438 (2016)

33 N.Y.S.3d 232

2016 NY Slip Op 04338

ROBERT N. DeBENEDICTIS, Respondent, v. ROBERT MALTA, Appellant, et al., Defendant. (And a Third-Party Action.)

Appellate Division of the Supreme Court of New York, First Department.

Decided June 7, 2016.

Defendant could not raise the argument that he was not a fiduciary for the first time on appeal from the denial of summary judgment. This fact-based argument is not the type generally considered for the first time on appeal (compare Vanship Holdings Ltd. v Energy Infrastructure Acquisition Corp., 65 A.D.3d 405, 408-409 [1st Dept 2009]). By raising it at this stage, defendant deprived plaintiff of the opportunity to annex relevant...

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