Rott v. Negev, LLC

102 A.D.3d 522, 957 N.Y.S.2d 860

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 17, 2013
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Jeffrey K. Oing, J.), entered December 29, 2010, after a jury trial, awarding plaintiff a total of $139,270.75, and bringing up for review an order, same court (Carol R. Edmead, J), dated October 25, 2010, to the extent it dismissed plaintiffs claim for lost rent, unanimously affirmed, without costs.

Contrary to Negev, LLC’s position, the subject ruling is appealable, as the in limine order dismissing plaintiffs claim for lost rental income did not “merely determine[ ] the admissibility of evidence,” it “limit[ed] the scope of issues to be tried” (Parker v Mobil Oil Corp., 16 AD 3d 648, 650 [2d Dept 2005], affd on other grounds 7 NY3d 434 [2006]). In the absence of a proffer as to how plaintiff intended to establish lost rental income and to show that the loss was proximately caused by defendants’ conduct, the trial court properly precluded plaintiff from offering evidence on this claim (see e.g. Lee Kin Chiu v City of New York, 174 Misc 2d 422, 426 [App Term, 2d Dept 1997]). Concur—Mazzarelli, J.P., Andrias, DeGrasse, Richter and Clark, JJ.