VAGLICA v. HOMEYER (2006)

In four related actions to recover damages for personal injuries, etc., the plaintiffs in Action No. 2, Glenn H. Homeyer and Eileen Homeyer, and the plaintiff in Action No. 3, Troy Ferdinando, separately appeal from (1) an order of the Supreme Court, Nassau County (Davis, J.), dated April 8, 2004, which denied their separate motions to vacate a prior oral decision of the same court dated February 19, 2004, precluding the plaintiffs from offering expert testimony regarding the subject motor vehicle accident, (2) an order of the same court dated December 6, 2004, which denied their separate motions to set aside a jury verdict pursuant to CPLR 4404(a), and (3) a judgment of the same court dated January 11, 2005, which, upon a jury verdict finding that the defendant Salvatore Vaglica was not negligent and that the plaintiff Glenn M. Homeyer was negligent in the happening of the accident, dismissed the complaints in Action Nos. 2 and 3.

ORDERED that the appeals from the orders dated April 8, 2004, and December 6, 2004, are dismissed;  and it is further,

ORDERED that the judgment is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.

The appeal from the order dated April 8, 2004, must be dismissed, as no appeal lies from an order denying a motion to vacate a decision (see Behrens v. Behrens, 143 A.D.2d 617, 532 N.Y.S.2d 893).

The appeal from the intermediate order dated December 6, 2004, must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).   The issue raised on the appeal from that order is brought up for review and has been considered on the appeal from the judgment (see CPLR 5501[a][1] ).

“As a general rule the admissibility of expert testimony on a particular point is addressed to the discretion of the trial court” (De Long v. County of Erie, 60 N.Y.2d 296, 307, 469 N.Y.S.2d 611, 457 N.E.2d 717).   Under the facts of this case, the Supreme Court providently exercised its discretion in precluding the appellants' proposed expert from testifying regarding the subject accident (see De Long v. County of Erie, supra at 307, 469 N.Y.S.2d 611, 457 N.E.2d 717;  Selkowitz v. County of Nassau, 45 N.Y.2d 97, 102-103, 408 N.Y.S.2d 10, 379 N.E.2d 1140;  Murphy v. Crecco, 255 A.D.2d 300, 679 N.Y.S.2d 418;  cf. DiLillo v. Reitman Blacktop, 299 A.D.2d 517, 751 N.Y.S.2d 273).   The subject matter of the intended expert's testimony was not beyond the ken of the typical jury.   The expert's testimony was not necessary.