Opinion
May 9, 1988
Appeal from the Supreme Court, Suffolk County (Geiler, J.).
Ordered that the appeal from so much of the judgment as impliedly found that the plaintiffs had standing to maintain this action is dismissed; and it is further,
Ordered that the judgment is otherwise affirmed insofar as appealed from, with costs.
The defendants may not appeal from the implied finding by the trial court that the plaintiffs had standing to maintain this action. After a nonjury trial, the trial court dismissed the plaintiffs' complaint, and therefore the defendants are not aggrieved by that portion of the judgment within the meaning of CPLR 5511 (see, Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 N.Y.2d 465, 472-473; Del Vecchio v Nassau County, 118 A.D.2d 615, 616; Rosenberg v Rixon, 111 A.D.2d 910).
The plaintiffs and the defendants each own property located at the end of a canal in East Islip. The plaintiffs commenced this action, inter alia, to enforce a restrictive covenant against the defendants' use of the plaintiffs' property. The defendants counterclaimed, inter alia, for a judgment directing that the plaintiffs remove any construction the plaintiffs had erected other than an original bulkhead on the canal.
On appeal, the defendants argue for the first time that the metes and bounds of the plaintiffs' deed indicate that the bulkhead was within the boundary of the property over which the plaintiffs had an easement, rather than within the boundary of the plaintiffs' own property. Similarly, the defendants now assert that the plaintiffs' use of the easement is excessive, although they made no such charge at trial. Both arguments must be rejected, since an appellate court will not consider new arguments if evidence might have been presented to overcome those arguments had they been made at trial (see, Fresh Pond Rd. Assocs. v Estate of Schacht, 120 A.D.2d 561, lv denied 68 N.Y.2d 802; Orellano v Samples Tire Equip. Supply Corp., 110 A.D.2d 757, 758).
Finally, the defendants did not object to the admission of the testimony by the plaintiffs' witness that the bulkhead was located on the plaintiffs' property. Consequently, the issue is not preserved for appellate review (see, Glow-Brite Elec. Serv. Corp. v Frocol Rest. Corp., 56 A.D.2d 909, lv denied 42 N.Y.2d 807). Weinstein, J.P., Eiber, Sullivan and Balletta, JJ., concur.