You are here: / / No Interlocutory Appeal Lies from a Pre-Trial Ruling on the Admissibility...
, ,

No Interlocutory Appeal Lies from a Pre-Trial Ruling on the Admissibility of Evidence Which Did Not Limit the Scope of the Issues or Theories of Liability to Be Tried

Defendant was intoxicated when her vehicle collided with plaintiff’s decedent’s vehicle.  Plaintiff, the administrator of decedent’s estate, sought to introduce expert testimony demonstrating that, based upon defendant’s blood-alcohol content six hours after the accident, she would have been visibly intoxicated and had a higher blood-alcohol content when she was served at defendant tavern.  The tavern moved to preclude the expert testimony and, after a Frye hearing, the court granted the motion.  The Third Department determined the court’s ruling on the evidentiary issue did not limit the scope of the issues or theories of liability to be tried and was not, therefore, appealable as of right or by permission. Appeal would have to wait until the trial is concluded:

It is well settled that “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” … . Supreme Court precluded plaintiff from offering an expert opinion as to “the extrapolated blood alcohol content [and] the physiological condition” of [defendant] while she was at the tavern, crediting the testimony of [the tavern’s] expert that such an opinion could not be reliably drawn from the available proof. Regardless of whether Supreme Court abused its discretion in making that determination, it was plainly an evidentiary ruling that did not “limit[] the scope of the issues or the theories of liability to be tried” … . Indeed, counsel for plaintiff acknowledged at oral argument that the preclusion of the proffered expert evidence is not fatal to his claims and that a trial will occur even if the evidence is not allowed. Appellate review thus must wait until after trial, when the relevance of the evidence and the effect of the evidentiary ruling may be properly assessed … . Hurtado v Williams, 2015 NY Slip Op 04912, 3rd Dept 6-11-15

 

You might also like
PLAINTIFF’S DECEDENT WAS NOT ENGAGED IN CONSTRUCTION WORK COVERED BY LABOR LAW 240 (1) AND 241 (6) WHEN A BRIDGE FORM HE WAS UNLOADING FELL ON HIM, PLAINTIFF MADE A SUFFICIENT SHOWING OF LONG-ARM JURISDICTION TO WARRANT DISCOVERY (THIRD DEPT).
County Has Power to Amend Tax Maps Without Notice and a Hearing/Tax Maps Merely Identify Property and Do Not Determine Ownership/Any Dispute About Ownership Must Be Remedied by an Action to Quiet Title
THE REASONS PROVIDED BY THE ZONING BOARD OF APPEALS FOR THE DENIAL OF A USE VARIANCE TO ALLOW CONSTRUCTION OF A SOLAR ARRAY WERE IRRATIONAL (THIRD DEPT). ​
THE SPEEDY TRIAL REQUIREMENTS FOR A JUVENILE DELINQUENCY PROCEEDING WERE VIOLATED (THIRD DEPT).
PURSUANT TO THE TOWN CODE, THE PLANNING BOARD DID NOT HAVE THE POWER TO INTERPRET A LOCAL ZONING LAW TO APPROVE A DEVELOPMENT PROJECT, MATTER REMITTED (THIRD DEPT).
THE EXECUTIVE LAW WHICH CREATED THE NYS COMMISSION ON ETHICS AND LOBBYING IN GOVERNMENT IS UNCONSTITUTIONAL; THE LAW CREATED AN AGENCY WITH EXECUTIVE POWERS WHICH USURPED THE GOVERNOR’S POWER TO ENSURE FAITHFUL EXECUTION OF ETHICS LAWS (THIRD DEPT) ​
ATTEMPT TO CONTEST THE NYS BOARD OF ELECTIONS’ FAILURE TO PLUG THE LLC LOOPHOLE, WHICH ALLOWS HIGHER CAMPAIGN CONTRIBUTIONS FOR LLC’S THAN FOR CORPORATIONS AND PARTNERSHIPS, PROPERLY DISMISSED FOR LACK OF STANDING AND LACK OF A JUSTICIABLE CONTROVERSY (THIRD DEPT).
ALTHOUGH THE CORRECTIONS OFFICERS CONDUCTING A STRIP SEARCH OF CLAIMANT PRISONER WERE PARTIALLY MOTIVATED BY THE INTENT TO HUMILIATE, THEY WERE DEEMED TO BE ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT AND THE STATE IS VICARIOUSLY LIABLE FOR THEIR INTENTIONAL TORTS (THIRD DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Resignation in the Face of Immediate Termination Constituted Termination by... Arbitrator Did Not Have the Authority (CPLR 7511) to Modify an Award by Adding...