Opinion
834 CA 19-01554
10-02-2020
SOLVAY BANK, Plaintiff-Respondent, v. FEHER RUBBISH REMOVAL, INC., and Larry Feher, Defendants-Appellants. Ronald Teplitsky, as Temporary Receiver, Respondent.
WOODRUFF LEE CARROLL, SYRACUSE, FOR DEFENDANTS-APPELLANTS. BARCLAY DAMON LLP, SYRACUSE (TERESA M. BENNETT OF COUNSEL), FOR RESPONDENT.
WOODRUFF LEE CARROLL, SYRACUSE, FOR DEFENDANTS-APPELLANTS.
BARCLAY DAMON LLP, SYRACUSE (TERESA M. BENNETT OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Defendants appeal from an order granting the motion of the temporary receiver by, inter alia, settling and approving the receiver's accounts and directing the disbursement of funds. Although defendants raised several contentions in their brief on appeal, they withdrew all but one contention. With respect to that remaining contention, the sole ground upon which defendants assert that Supreme Court erred in approving the order of payment by the receiver is raised for the first time on appeal and thus not properly before us (see Ciesinski v. Town of Aurora , 202 A.D.2d 984, 985, 609 N.Y.S.2d 745 [4th Dept. 1994] ; see also Radio Eng'g Indus., Inc. v. York , 14 A.D.3d 893, 894, 788 N.Y.S.2d 488 [3d Dept. 2005] ). "An issue may not be raised for the first time on appeal ... where[, as here,] it ‘could 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] ; see Lowe's Home Ctrs., Inc. v. Beachy's Equip. Co., Inc. , 49 A.D.3d 1213, 1214-1215, 854 N.Y.S.2d 616 [4th Dept. 2008], lv denied 10 N.Y.3d 715, 862 N.Y.S.2d 336, 892 N.E.2d 402 [2008] ). The contentions raised for the first time in defendants' reply brief are likewise not properly before us (see Turner v. Canale , 15 A.D.3d 960, 961, 790 N.Y.S.2d 347 [4th Dept. 2005], lv denied 5 N.Y.3d 702, 799 N.Y.S.2d 773, 832 N.E.2d 1189 [2005] ).