Opinion
406 CA 21-01593
04-22-2022
Of DOES 3-6, et al., Plaintiffs-Respondents, v. KENMORE-TOWN OF TONAWANDA UNION FREE SCHOOL DISTRICT, Defendant-Appellant.
HODGSON RUSS LLP, BUFFALO (JULIA M. HILLIKER OF COUNSEL), FOR DEFENDANT-APPELLANT. O'BRIEN & FORD, P.C., BUFFALO (CHRISTOPHER J. O'BRIEN OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
HODGSON RUSS LLP, BUFFALO (JULIA M. HILLIKER OF COUNSEL), FOR DEFENDANT-APPELLANT.
O'BRIEN & FORD, P.C., BUFFALO (CHRISTOPHER J. O'BRIEN OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
PRESENT: SMITH, J.P., CENTRA, LINDLEY, AND CURRAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that said appeal is unanimously dismissed without costs.
Memorandum: Plaintiffs commenced this personal injury action pursuant to the Child Victims Act (see CPLR 214-g ), alleging that they were sexually abused by a fifth grade teacher between 1963 and 1992, while attending school at the Herbert Hoover Elementary School within defendant. Defendant moved pretrial for an order determining that the teacher at issue is incompetent to testify due to dementia, and precluding any further use of that teacher's deposition testimony, and defendant now appeals from an amended order denying the motion. "Generally, an order denying a motion in limine, 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’ " ( Thome v. Benchmark Main Tr. Assoc., LLC , 125 A.D.3d 1283, 1285, 3 N.Y.S.3d 475 [4th Dept. 2015] ; see Innovative Transmission & Engine Co., LLC v. Massaro , 63 A.D.3d 1506, 1507, 879 N.Y.S.2d 856 [4th Dept. 2009] ). Here, no appeal lies as of right from the amended order inasmuch as it "merely adjudicates the admissibility of evidence" and does not affect a substantial right ( Scalp & Blade, Inc. v. Advest, Inc. , 309 A.D.2d 219, 224, 765 N.Y.S.2d 92 [4th Dept. 2003] ; see CPLR 5701 [a] [2] [v] ). Consequently, the appeal must be dismissed (see Shahram v. St. Elizabeth School , 21 A.D.3d 1377, 1378, 801 N.Y.S.2d 643 [4th Dept. 2005] ).