Opinion
Decided and Entered: July 19, 2001.
Appeal from an order of the Supreme Court (Sise, J.), entered December 13, 2000 in Fulton County, which denied plaintiff's motion in limine for an order seeking to admit certain expert testimony at the time of trial.
Mills Law Firm (John E. Dorfman, Bohl, Della Rocca Dorfman, of counsel), Albany, for appellant.
Carter, Conboy, Case, Blackmore, Maloney Laird P.C. (Blair W. Todt of counsel), Albany, for respondents.
Before: Cardona, P.J., Spain, Carpinello, Mugglin and Rose, JJ.
MEMORANDUM AND ORDER
Plaintiff commenced this action seeking monetary damages for medical malpractice allegedly committed by defendant John R. Kearney (hereinafter defendant) in performing certain surgical procedures on her right eye. Plaintiff developed a postoperative bacterial infection known as endophthalmitis, which led to the loss of sight in her right eye. Following joinder of issue, plaintiff made a motion in limine seeking the admission of expert testimony concerning two similar surgical procedures performed by defendant within the same week whereby the patients also developed the very same bacterial infection suffered by plaintiff. Supreme Court denied the motion on various grounds and plaintiff appeals.
Inasmuch as the order appealed from is an evidentiary ruling, the appeal must be dismissed. "Although a pretrial order which limits the scope of the issues to be tried is appealable (cf., Siewert v. Loudonville Elementary School, 210 A.D.2d 568), an order which merely determines the admissibility of evidence, `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'" (Hargrave v. Presher, 221 A.D.2d 677, 678, quoting Savarese v. City of New York Hous. Auth., 172 A.D.2d 506, 509; see, Chateau Rive Corp. v. Enclave Dev. Assocs., 283 A.D.2d 537, 725 N.Y.S.2d 215; Brown v. State of New York, 250 A.D.2d 314; Strait v. Ogden Med. Ctr., 246 A.D.2d 12; Pellegrino v. New York City Tr. Auth., 141 A.D.2d 709; see also, 4 N.Y. Jur 2d, Appellate Review, § 43, at 107). Instead, "appellate review should be deferred until after the trial" (Hargrave v. Presher, supra, at 678;see, e.g., Cocca v. Conway, 283 A.D.2d 787, 725 N.Y.S.2d 125; Matter of Estate of Murtlow, 258 A.D.2d 686, lv denied 93 N.Y.2d 814).
Cardona, P.J., Spain, Carpinello, Mugglin and Rose, JJ., concur.
ORDERED that the appeal is dismissed, without costs.