ROBERT BERKLEY PHYSICAL THERAPY PLAINTIFF RESPONDENT v. APPEAL NO

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Supreme Court, Appellate Division, Fourth Department, New York.

ROBERT BERKLEY PHYSICAL THERAPY, P.C., PLAINTIFF–RESPONDENT, v. THE HISTORIC WOODRUFF BLOCK, LLC, DEFENDANT–APPELLANT. (APPEAL NO. 2.)

CA 13–01149

Decided: February 14, 2014

PRESENT:  SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ. RICHARD PALMA, NEW YORK CITY, FOR DEFENDANT–APPELLANT. BOND, SCHOENECK & KING, PLLC, OSWEGO (SCOTT J. DELCONTE OF COUNSEL), FOR PLAINTIFF–RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  Defendant's sole contention on appeal is that a contract was never formed based on lack or failure of consideration, and thus that Supreme Court erred in granting plaintiff's motion for summary judgment and entering judgment in plaintiff's favor.   That contention is raised for the first time on appeal and thus is not properly before us (see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985).

Frances E. Cafarell

Clerk of the Court