THOMAS MOTT JR PLAINTIFF RESPONDENT v. STRONGBUILT INC DEFENDANT AND BASS PRO OUTDOOR WORLD LLC DEFENDANT APPELLANT (2010)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Defendant Bass Pro Outdoor World, LLC (Bass Pro) appeals from an order that, inter alia, granted the motion of plaintiff to sever the instant action against defendant Strongbuilt, Inc. pursuant to CPLR 603.   The sole contention of Bass Pro on appeal is that the order eviscerated its rights under CPLR article 16 to apportionment of liability because Supreme Court imposed no conditions in granting the severance motion.   Bass Pro therefore contends that the order should be reversed or, in the alternative, modified to preserve its rights under CPLR article 16 (see generally Kharmah v Metropolitan Chiropractic Ctr., 288 A.D.2d 94).   Bass Pro raises that contention for the first time on appeal, however, and “[i]t is well settled that ‘[a]n appellate court should not, and will not, consider different theories or new questions [where, as here], ․ proof might have been offered to refute or overcome them had those theories or questions been presented in the court of first instance’ “ (Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985;  see Lowe's Home Ctrs., Inc. v. Beachy's Equip.   Co., Inc., 49 AD3d 1213, 1214-1215, lv denied 10 NY3d 715).   Bass Pro has not raised any of the issues set forth in its papers before the court in opposition to plaintiff's motion for severance, and we therefore deem those issues abandoned (see Ciesinski, 202 A.D.2d at 984).

Patricia L. Morgan

Clerk of the Court