Appellate Procedure: issue may be raised for first time on appeal…

On appeal, the plaintiffs have abandoned their claim that the right to
use the beach was automatically renewed upon the absence of a written
termination agreement, and they argue for the first time that the right
to use the beach did not constitute a "covenant" subject to expiration
under the terms of the declaration, but rather an easement that runs
with the land and passes to successive lot owners. Contrary to the
defendants' contention, this issue may be raised for the first time on
appeal because it is one of law which appears on the face of the record
and could not have been avoided if it had been raised at the proper
juncture (see Romain v Grant, 60 AD3d 838, 839; Beepat v James,
303 AD2d 345). However, since the plaintiffs interchangeably referred
to the right to use the beach as both a "covenant" and "easement"
before the lower court, and relied upon the language in the declaration
that they now seek to disavow, they are estopped from raising the new
claim, which is inconsistent with the position taken before the Supreme
Court (see Matter of Sbuttoni, 16 AD3d 693, 694; Kohilakis v Smithtown, 167
AD2d 513, 514). In any event, the language of the declaration did not
unequivocally establish an intent to create a right in the nature of an
easement rather than a revocable license (see Willow Tex v Dimacopoulos, 68 NY2d 963, 965). Accordingly, the Supreme Court properly granted the defendants' separate motions to dismiss the complaint.