Opinion
2014-01-21
Marcus DEONARINE, Plaintiff–Respondent, v. MONTEFIORE MEDICAL CENTER, Defendant–Appellant.
Wenick & Finger, P.C., New York (Frank J. Wenick of counsel), for appellant. Peña & Kahn, PLLC, Bronx (Diane Welch Bando of counsel), for respondent.
Wenick & Finger, P.C., New York (Frank J. Wenick of counsel), for appellant. Peña & Kahn, PLLC, Bronx (Diane Welch Bando of counsel), for respondent.
Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered July 19, 2012, which, to the extent appealed from as limited by the briefs, denied defendant's motion to dismiss the complaint pursuant to CPLR 3211 and 3212, and denied defendant's motion to preclude plaintiff's use of his deposition at trial, unanimously affirmed as to the denial of defendant's motion to dismiss, and the appeal therefrom otherwise dismissed, without costs.
The court properly denied the motion to dismiss the complaint inasmuch as it was based solely on defendant's assertion that plaintiff would be unable to make out a prima facie case at trial by reason of his anticipated “unavailability to testify as a result of his imminent deportation ...” Accordingly the motion was actually a prematurely made motion for judgment pursuant to CPLR 4401, which has to await the close of plaintiff's case at trial even if plaintiff's ultimate success in the action is improbable ( see Cass v. Broome County Coop. Ins. Co., 94 A.D.2d 822, 823, 463 N.Y.S.2d 312 [3rd Dept.1983] ). The court's denial of defendant's motion to preclude was effectively an evidentiary ruling made in advance of trial and, as such, is not appealable ( see Balcom v. Reither, 77 A.D.3d 863, 864, 911 N.Y.S.2d 72 [2nd Dept.2010] ). We have considered defendant's remaining contentions and find them to be without merit. TOM, J.P., ANDRIAS, SAXE, DeGRASSE, RICHTER, JJ., concur.