Shahram v. St. Elizabeth School

21 A.D.3d 1377, 801 N.Y.S.2d 643

Opinion

Appeal and cross appeal from an order of the Supreme Court, Erie County (Patrick H. NeMoyer, J.), entered February 23, 2005. The order granted in part the motion of plaintiff Zahra Shahram to preclude.

It is hereby ordered that said appeal and cross appeal be and the same hereby are unanimously dismissed without costs.

Memorandum: Plaintiffs commenced this action seeking damages for injuries allegedly sustained by Zahra Shahram (plaintiff) in a motor vehicle accident in 1998. Plaintiff thereafter made a motion in limine seeking to preclude defendants from “utilizing [certain] information at trial,” including her bill of particulars and amended bill of particulars from prior litigation wherein she sought damages for injuries she sustained in a motor vehicle accident in 1990. According to plaintiff, her former attorney sent her only the verification pages for the respective bills of particulars and directed her to sign those pages in the presence of a notary public and return them to him. Supreme Court, inter alia, granted that part of the motion “conditionally,” i.e., on the condition that plaintiff testify at trial that she had not read the bill of particulars and amended bill of particulars. Inasmuch as the order herein “merely adjudicates the admissibility of evidence” and does not affect a substantial right, no appeal lies as of right from the order (Scalp & Blade v Advest, Inc., 309 AD2d 219, 224 [2003]; see CPLR 5701 [a] [2] [v]). Thus, the appeal and cross appeal must be dismissed (see Vesperman v Wormser, 283 AD2d 637, 638 [2001]; Chateau Rive Corp. v Enclave Dev. Assoc., 283 AD2d 537 [2001]). Present— Hurlbutt, J.P., Scudder, Smith, Pine and Hayes, JJ.