Vista Eng'g Corp. v Everest Indem. Ins. Co., 2018 NY Slip Op 03730 [1st Dept. 2018] (note the dissent)

It is well settled that a party may not argue on appeal a theory never presented to the court of original jurisdiction (see Tortorello v Carlin, 260 AD2d 201, 205 [1st Dept 1999]; Sean M. v City of New York, 20 AD3d 146, 149-150 [1st Dept 2005] [same]; Admiral Ins. Co. v Marriott Intl.Inc., 79 AD3d 572 [1st Dept 2010], lv denied 17 NY3d 708 [2017] [same]; Elter v New York City Hous. Auth., 260 AD2d 232 [1st Dept 1999] [same]; Botfeld v Wong, 104 AD3d 433, 434 [1st Dept 2013] [argument improperly raised for the first time on appeal since the issue was not a purely legal issue apparent on the face of the record but required for resolution facts not brought to the opposing party's attention on the motion]). In Preserver Ins. Co. v Ryba (10 NY3d 635 [2008]), the Court of Appeals held that although the policy at issue covered risks in New York, the insured was a New Jersey company, with its only offices located in New Jersey, and, hence, the insured was not located in New York. Nor was the policy "issued for delivery" in New York (id. at 642). While the Court of Appeals in Carlson held that the "meaning of issued or delivered' is informed by our decision in" Preserver (Carlson, 10 NY3d at 296), the Court expanded on the definition of "located in" by adding a substantial business presence element. The dissent discounts the fact that this element was not briefed before the motion court, or before us. We decline to grant Vista summary judgment on an incomplete record and on a theory that was not raised below.

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