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Robert Berkley Physical Therapy, P.C. v. Historic Woodruff Block, LLC

Supreme Court of New York, Fourth Department

February 14, 2014

Robert Berkley Physical Therapy, P.C., PLAINTIFF-RESPONDENT,
v.
The Historic Woodruff Block, LLC, DEFENDANT-APPELLANT. (APPEAL NO. 2.)

Appeal from an order and judgment (one paper) of the Supreme Court, Oswego County (Norman W. Seiter, Jr., J.), entered September 10, 2012. The order and judgment awarded money damages to plaintiff.

RICHARD PALMA, NEW YORK CITY, FOR DEFENDANT-APPELLANT.

BOND, SCHOENECK & KING, PLLC, OSWEGO (SCOTT J. DELCONTE OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.

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).


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