KEELEY v. TRACY (2005)

In an action to recover damages for legal malpractice, the plaintiff appeals, as limited by his brief, (1) from so much of an order of the Supreme Court, Richmond County (Aliotta, J.), dated March 8, 2004, as granted the motion of the defendants John J. Tracy and Tracy & Stillwell, P.C., to preclude the plaintiff from offering certain expert testimony at trial, and (2) from so much of an order of the same court dated June 17, 2004, as denied his motion, denominated as one for leave to renew and reargue the prior motion, but which was, in actuality, for leave to reargue the prior motion.

ORDERED that the appeals are dismissed, without costs or disbursements.

The Supreme Court's determination precluding the plaintiff's forensic toxicologist from testifying at trial was an evidentiary ruling.   Such a ruling, 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” (Chateau Rive Corp. v. Enclave Dev. Assocs., 283 A.D.2d 537, 725 N.Y.S.2d 215;  see also Weiss v. Industrial Enters., 7 A.D.3d 518, 776 N.Y.S.2d 322).   Thus, we dismiss the appeal from the order dated March 8, 2004.

Additionally, we dismiss the appeal from the order dated June 17, 2004, as no appeal lies from an order denying reargument.