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MOTIONS IN LIMINE WHICH AFFECT THE SCOPE OF THE TRIAL ARE APPEALABLE; TWO-YEAR WRONGFUL DEATH STATUTE OF LIMITATIONS APPLIED TO THE MUNICIPALITIES; PRECLUDING EXPERT TESTIMONY BASED UPON DISCLOSURE DEFICIENCIES WAS AN ABUSE OF DISCRETION (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined: (1) plaintiff did not allege separate claims for personal injury and wrongful death, therefore the two-year wrongful-death statute of limitations in EPTL 5-4.1, not the one-year-ninety-days statute of limitations for negligence, applied to the actions against the municipalities; (2) motions in limine which limit the scope of the trial are appealable; and (3) preclusion of plaintiff’s expert’s testimony, based upon deficient disclosure pursuant to CPLR 3101 (d)(1), was an abuse of discretion. The action arose from a gas explosion at the great grandfather’s house which killed plaintiff’s 15-month-old son. Plaintiff sued the village, the town, the county and the New York State Electric & Gss Corporation (NYSEG). With regard to the motions in limine, the Third Department wrote:

“An order ruling on a motion in limine is generally not appealable as of right or by permission since an order made in advance of trial which merely determined the admissibility of evidence is an unappealable advisory ruling. However, an order that limits the scope of issues to be tried, affecting the merits of the controversy or the substantial rights of a party, is appealable” … . As to plaintiff’s objection to that part of the order as allowed evidence of the great grandfather’s negligence as a defense to the claim of res ipsa loquiter does not limit the scope of issues or impact a substantial right, such issue is not appealable … . Plaintiff also contends that Supreme Court erred in partially granting NYSEG’s motion to preclude the testimony of Reiber, plaintiff’s economist. Finding that the expert disclosure lacked reasonable detail as to how the value that Reiber assigned to plaintiff’s lost services and support would be calculated, Supreme Court precluded his testimony with regard to said damages. … However, because this ruling restricted plaintiff’s ability to prove and recover damages, this issue is appealable … . Reed v New York State Elec. & Gas Corp., 2020 NY Slip Op 03054, 5-28-20

 

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