BURDICK v. TONOGA INC (2021)

MEMORANDUM AND ORDER

Appeals from five orders of the Supreme Court (McGrath, J.), entered November 25, 2019 in Rensselaer County, which, among other things, partially denied defendant's motions to preclude the testimony of plaintiffs' experts.

The underlying facts are set forth in a prior appeal (179 A.D.3d 53, 112 N.Y.S.3d 342 [2019]).  Briefly, plaintiffs commenced this action alleging that defendant, a manufacturing facility, improperly disposed of chemical compounds, thereby contaminating the water of private wells in the surrounding area.  Following joinder of issue and discovery, defendant made five separate motions – each one seeking to preclude plaintiffs' expert witnesses from offering testimony on the basis that their testimony was inadmissible as speculative and conclusory and/or as failing to meet the standard articulated in Frye v. United States, 293 F. 1013 (D.C. Cir.1923).  In one order entered November 25, 2019, Supreme Court granted the motion to the limited extent of precluding one of plaintiffs' experts from testifying as to certain issues and otherwise denied it.  In four other orders, each entered November 25, 2019, the court denied the remaining motions in their entirety.  These appeals ensued.

“[A]n 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” (Hurtado v. Williams, 129 A.D.3d 1284, 1284–1285, 11 N.Y.S.3d 349 [2015] [internal quotation marks and citations omitted];  see Thornhill v. Degen, 185 A.D.3d 982, 983, 125 N.Y.S.3d 885 [2020];  Strait v. Ogden Med. Ctr., 246 A.D.2d 12, 14, 675 N.Y.S.2d 457 [1998]).  The November 2019 orders addressed only the issue of the admissibility of the testimonies of plaintiffs' experts (see Thornhill v. Degen, 185 A.D.3d at 983, 125 N.Y.S.3d 885;  Brindle v. Soni, 41 A.D.3d 938, 939, 836 N.Y.S.2d 744 [2007];  Ferrara v. Kearney, 285 A.D.2d 890, 890, 727 N.Y.S.2d 358 [2001]).  Because the orders did not limit the scope of the issues or the theories of liability to be tried (see Lynch v. Carlozzi, 121 A.D.3d 1308, 1310, 995 N.Y.S.2d 292 [2014];  compare Brown v. State of New York, 250 A.D.2d 314, 320–321, 681 N.Y.S.2d 170 [1998]), the appeals must be dismissed (see C.H. v. Dolkart, 174 A.D.3d 1098, 1099, 104 N.Y.S.3d 404 [2019];  Hurtado v. Williams, 129 A.D.3d at 1285, 11 N.Y.S.3d 349;  Brindle v. Soni, 41 A.D.3d at 939, 836 N.Y.S.2d 744).

Finally, we note that, after defendant sought preclusion, it moved for summary judgment dismissing the second amended complaint in an entirely separate motion.  Supreme Court partially denied the summary judgment motion in a January 2020 order.  Even though the court relied, in part, on plaintiffs' expert opinions in reaching its conclusion in the January 2020 order, defendant's appeal therefrom and our decision in that appeal (Burdick v. Tonoga, Inc., 191 A.D.3d 1220, 143 N.Y.S.3d 123 [appeal No. 531108, decided herewith]) does not alter the determination herein that the November 2019 orders are not appealable.  Defendant did not seek preclusion and summary judgment in the same motion (compare Robinson v. Bartlett, 95 A.D.3d 1531, 1532, 944 N.Y.S.2d 777 [2012];  Jackson v. Nutmeg Tech., Inc., 43 A.D.3d 599, 600, 842 N.Y.S.2d 588 [2007]), nor did the court consolidate the preclusion motions and the summary judgment motion for disposition in a single order.  Furthermore, the November 2019 orders did not resolve the summary judgment motion (see Lynch v. Carlozzi, 121 A.D.3d at 1310, 995 N.Y.S.2d 292).  Viewing the November 2019 orders independently from the January 2020 order, the November 2019 orders, as mentioned, merely ruled on the admissibility of evidence.  As such, they are not appealable (see id.).

ORDERED that the appeals are dismissed, with costs.

Aarons, J.

Garry, P.J., Egan Jr. and Lynch, JJ., concur.