REMET CORPORATION v. ESTATE OF PYNE (2019)

MEMORANDUM AND ORDER

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

Memorandum:  We affirm the order in appeal No. 1 and the judgment in appeal No. 2 for reasons stated in the decisions at Supreme Court.  We add only that plaintiff improperly contends, for the first time on appeal, that it is entitled under the provisions of Section 8.1(a)(ii) of the operative Purchase and Sale Agreement to indemnification for the attorneys' fees it has incurred in prosecuting this action for indemnification (Remet Corp. v. Estate of Pyne, 26 N.Y.3d 58, 19 N.Y.S.3d 796, 41 N.E.3d 760 [2015];  see generally Oram v. Capone, 206 A.D.2d 839, 840, 615 N.Y.S.2d 799 [4th Dept. 1994];  Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985, 609 N.Y.S.2d 745 [4th Dept. 1994] ).  “It is well settled that ‘[a]n appellate court should not, and will not, consider different theories or new questions, if proof might have been offered to refute or overcome them had those theories or questions been presented in the court of first instance’ ” (Ciesinski, 202 A.D.2d at 985, 609 N.Y.S.2d 745).  Here, there is a possibility that defendants, through either proof or legal countersteps, could have refuted or overcome plaintiff's newly raised theory of recovery had it been presented at the appropriate time (see Oram, 206 A.D.2d at 840, 615 N.Y.S.2d 799;  Ciesinski, 202 A.D.2d at 985, 609 N.Y.S.2d 745).