Ferrara v. Kearney

Jul 19, 2001
Versions:285 A.D.2d 890
727 N.Y.S.2d 358
2001 N.Y. App. Div. LEXIS 7538

—Appeal from an order of the Supreme Court (Sise, J.), entered December 13, 2000 in Fulton County, which denied plaintiff’s motion in limine for an order seeking to admit certain expert testimony at the time of trial.

Plaintiff commenced this action seeking monetary damages for medical malpractice allegedly committed by defendant John R. Kearney (hereinafter defendant) in performing certain surgical procedures on her right eye. Plaintiff developed a postoperative bacterial infection known as endophthalmitis, which led to the loss of sight in her right eye. Following joinder of issue, plaintiff made a motion in limine seeking the admission of expert testimony concerning two similar surgical procedures performed by defendant within the same week whereby the patients also developed the very same bacterial infection suffered by plaintiff. Supreme Court denied the motion on various grounds and plaintiff appeals.

Inasmuch as the order appealed from is an evidentiary ruling, the appeal must be dismissed. “Although a pretrial order which limits the scope of the issues to be tried is appealable (cf., Siewert v Loudonville Elementary School, 210 AD2d 568), an order which merely determines the admissibility of evidence, ‘even when made in advance of trial on motion papers, constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission’ ” (Hargrave v Presher, 221 AD2d 677, 678, quoting Savarese v City of New York Hous. Auth., 172 AD2d 506, 509; see, Chateau Rive Corp. v Enclave Dev. Assocs., 283 AD2d 537; Brown v State of New York, 250 AD2d 314; Strait v Ogden Med. Ctr., 246 AD2d 12; Pellegrino v New York City Tr. Auth., 141 AD2d 709; see also, 4 NY Jur 2d, Appellate Review, § 43, at 107). Instead, “appellate review should be deferred until after the trial” (Hargrave v Presher, *891supra, at 678; see, e.g., Cocea v Conway, 283 AD2d 787; Matter of Murtlow, 258 AD2d 686, lv denied 93 NY2d 814).

Cardona, P. J., Spain, Carpinello, Mugglin and Rose, JJ., concur. Ordered that the appeal is dismissed, without costs.