Cadwallader v. State

—Judgment unanimously affirmed with costs. Memorandum: We affirm for reasons stated in the decision at the Court of Claims (Hanifin, J.). We add only that the argument advanced by the State for the first time on appeal, that the award to claimant should be reduced to approximately $78,000, reflecting a recent sale of the property plus 3% per annum for inflation from the date of sale to the date of appropriation, is not properly before us (see, Lippes v Bradley, 203 AD2d 959; Ciesinski v Town of Aurora, 202 AD2d 984; Charlotte Lake Riv. Assocs. v American Ins. Co., 68 AD2d 151, 154-155). It is well settled that "[a]n appellate court should not, and will not, consider different theories or new questions, if proof might have been offered to refute or overcome them had those theories or questions been presented in the court of first instance” (Fresh Pond Rd. Assocs. v Estate of Schacht, 120 AD2d 561, lv denied 68 NY2d 802; see, Lippes 886 v Bradley, supra; Douglas Elliman-Gibbons & Ives v Kellerman, 172 AD2d 307, 308, lv denied 78 NY2d 856). (Appeal from Judgment of Court of Claims, Hanifin, J.—Appropriation.) Present—Green, J. P., Pine, Balio, Callahan and Boehm, JJ.