Brantley v Municipal Credit Union, 2009 NY Slip Op 02256 (App. Div., 1st, 2009)
Respondent never argued before the motion court that petitioner
lacked standing to assert his own claims; it argued only that he lacked
standing to make claims with regard to certain persons who were not
named parties in this proceeding. Having failed to argue in either an
answer or a pre-answer motion to dismiss that petitioner lacked
standing to assert his own claims, respondent waived that defense (see e.g. Dougherty v City of Rye, 63 NY2d 989, 991-992 ; Security Pac. Natl. Bank v Evans, 31 AD3d 278 , appeal dismissed 8 NY3d 837 ).
Similarly, respondent failed to argue that mandamus did not lie
in this proceeding. As respondent itself contends with respect to some
of petitioner's claims, an argument raised for the first time on appeal
should not be considered.