Citlak v. Nassau County Medical Center

37 A.D.3d 640, 828 N.Y.S.2d 912

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 20, 2007
• Status: Published

Opinion

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Peck, J.), dated February 8, 2005, which, after a hearing, granted those branches of the defendant’s motion in limine which were to preclude them from offering certain expert testimony at trial.

Ordered that the appeal is dismissed, without costs or disbursements.

The Supreme Court’s determination precluding the plaintiffs’ experts from testifying as to certain opinions at trial was an evidentiary ruling. Such a ruling, 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” (Chateau Rive Corp. v Enclave Dev. Assoc., 283 AD2d 537 [2001] [internal quotation marks omitted]; see Winograd, v Price, 21 AD3d 956 [2005]).

In light of our determination, we do not pass upon the propriety of conducting a Frye hearing (see Frye v United States, 293 F 1013 [1923]) under the facts of this case or of the results reached by the Supreme Court. Goldstein, J.P, Skelos, Lunn and Covello, JJ., concur.