Oram v. Capone
| Decision Date | 15 July 1994 |
| Parties | Donna J. ORAM, Respondent, v. Robert L. CAPONE, Individually and as Administrator of the Estate of James V. Capone, Deceased, Defendant, Robin J. Halbert, Arlene A. Halbert, and the County of Onondaga, Appellants. |
| Court | New York Supreme Court — Appellate Division |
Jon A. Gerber (Marisa V. Temple, of counsel), Syracuse, for appellant County of Onondaga.
MacKenzie, Smith, Lewis, Michell & Hughes, Barney Bilello, Syracuse, for appellants Halbert and Halbert.
Aaron Mark Zimmerman, Syracuse, for respondent.
Before DENMAN, P.J., and PINE, FALLON, CALLAHAN and DAVIS, JJ.
Defendant County of Onondaga (County) failed to preserve for review its argument that, pursuant to Weiss v. Fote, 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167 N.E.2d 63, rearg. denied 8 N.Y.2d 934, 204 N.Y.S.2d 1025, 168 N.E.2d 857, the doctrine of qualified municipal immunity applies to bar recovery against it. The County argues for the first time on appeal that plaintiff failed to establish that its decision not to post reduced speed signs on the subject portion of Lafayette Road was the result of an inadequate study or that its decision lacked a reasonable basis.
A question of law appearing on the face of the record may be raised for the first time on appeal if it could not have been avoided by the opposing party if brought to that party's attention in a timely manner (Block v. Magee, 146 A.D.2d 730, 732, 537 N.Y.S.2d 215). An issue may not be raised for the first time on appeal, however, where it "could have been obviated or cured by factual showings or legal countersteps" in the trial court (Telaro v. Telaro, 25 N.Y.2d 433, 439, 306 N.Y.S.2d 920, 255 N.E.2d 158, rearg. denied 26 N.Y.2d 751, 309 N.Y.S.2d 1031, 257 N.E.2d 296). We conclude that additional evidence could have been presented by plaintiff or codefendants Halberts to present a jury issue whether the County failed to conduct an adequate study or whether its decision lacked a reasonable basis (see, e.g., Scheemaker v. State of New York, 70 N.Y.2d 985, 526 N.Y.S.2d 420, 521 N.E.2d 427; Ganios v. State of New York, 181 A.D.2d 859, 581 N.Y.S.2d 834; Cordero v. City of New York, 112 A.D.2d 914, 915-916, 492 N.Y.S.2d 430). Thus, it cannot be said that the doctrine of qualified immunity necessarily applies as a matter of law.
We have considered the remaining contentions and find them to be without merit.
Judgment unanimously affirmed without costs.
To continue reading
Request your trial
-
Perez-Dickson v. City of Bridgeport
...be required to afford the defendants an opportunity to present additional evidence under the new standard. See Oram v. Capone, 206 App. Div. 2d 839, 840, 615 N.Y.S.2d 799 (1994) (''[a]n issue may not be raised for the first time on appeal . . . where it could have been obviated or cured by ......
-
Perez–Dickson v. City of Bridgeport
...be required to afford the defendants an opportunity to present additional evidence under the new standard. See Oram v. Capone, 206 App.Div.2d 839, 840, 615 N.Y.S.2d 799 (1994) (“[a]n issue may not be raised for the first time on appeal ... where it could have been obviated or cured by factu......
-
Brown & Brown, Inc. v. Theresa A. Johnson & Lawley Benefits Grp., LLC
...brought to [their] attention in a timely manner’ ” ( Paul v. Cooper, 45 A.D.3d 1485, 1486, 845 N.Y.S.2d 905, quoting Oram v. Capone, 206 A.D.2d 839, 840, 615 N.Y.S.2d 799), and thus it may properly be raised by defendants for the first time on appeal. A non-solicitation covenant is overbroa......
-
Newhampshire v. Jesus R. & Brenda S.
...could not have been " ‘obviated or cured by factual showings or legal countersteps’ in the trial court" ( Oram v. Capone, 206 A.D.2d 839, 840, 615 N.Y.S.2d 799 [4th Dept. 1994] ). Although the AFC contends that petitioner could have taken legal countersteps such as seeking standing by showi......