KENNEDY v. NIMONS (2022)

MEMORANDUM AND ORDER

Appeal from an order of the Supreme Court (Zwack, J.), entered October 7, 2021 in Rensselaer County, which granted defendants’ motion in limine.

This matter comes before us for a third time, and a brief recitation of the facts is warranted (178 A.D.3d 1302, 116 N.Y.S.3d 424 [2019];  121 A.D.3d 1229, 994 N.Y.S.2d 685 [2014]).  Plaintiff commenced this action seeking confirmation of the western boundary line of his property, which abuts defendants’ property.  Following a trial wherein the jury was charged with determining whether, by either deed description or under the doctrine of practical location, the western boundary was incorrectly located, the jury returned a verdict in favor of defendants.  On appeal, we found that while the jury's determination with respect to practical location was not against the weight of the evidence, Supreme Court had committed reversible error as to the jury charge for deed by description.  We further denied plaintiff's request to conform the pleadings to the proof so as to allow an adverse possession claim.  We then remitted the matter for further proceedings not inconsistent with this Court's decision (178 A.D.3d at 1305, 116 N.Y.S.3d 424).  Thereafter, defendants submitted a motion in limine seeking to prohibit plaintiff from introducing his claims of adverse possession and practical location on retrial.  Supreme Court granted the requested relief, precluding such evidence.  Plaintiff appeals.¹

Plaintiff contends that Supreme Court erred in granting defendants’ motion in limine to restrict proof at the second trial concerning his claim for adverse possession.  In general, a ruling on a motion in limine is not appealable as of right or by permission since an order made in advance of trial, that merely determines the admissibility of evidence, is essentially an unappealable advisory ruling (see Lynch v. Carlozzi, 121 A.D.3d 1308, 1309, 995 N.Y.S.2d 292 [2014]).  However, an order that limits the scope of issues to be tried is appealable (see Hauser v. Fort Hudson Nursing Ctr., Inc., 202 A.D.3d 45, 48 n. 1, 161 N.Y.S.3d 374 [2021];  Reed v. New York State Elec. & Gas Corp., 183 A.D.3d 1207, 1212–1213, 125 N.Y.S.3d 475 [2020];  Calabrese Bakeries, Inc. v. Rockland Bakery, Inc., 139 A.D.3d 1192, 1193–1194, 32 N.Y.S.3d 667 [2016]).  As Supreme Court's October 2021 order limits the issues to be tried, it is appealable.

As a rule, when a retrial is ordered the parties are left in the same position as though there had been no trial, unless the appellate court, in its decision and order, directs that a new trial be limited in its scope (see Sherry v. North Colonie Cent. School Dist., 39 A.D.3d 986, 991, 833 N.Y.S.2d 746 [2007];  Enden v. Nationwide Mut. Ins. Co., 251 A.D.2d 283, 283, 672 N.Y.S.2d 806 [1998]).  Here, our prior decision, in declining plaintiff's request to conform the pleadings to the proof to accommodate a claim of adverse possession, did just that, finding that the jury was not charged with deciding a claim for adverse possession, and that plaintiff had the opportunity to advance this claim at trial and chose not to do so.  In so doing, we determined that the sole claim to be heard on retrial related to the location of the boundary by deed description (cf.  O'Buckley v. County of Chemung, 163 A.D.3d 1129, 1130, 76 N.Y.S.3d 428 [2018];  Ciarelli v. Lynch, 22 A.D.3d 987, 990, 803 N.Y.S.2d 236 [2005]).  Accordingly, we find no error in Supreme Court granting defendants’ motion in limine to restrict proof at the second trial concerning adverse possession.  Plaintiff's remaining contentions are either rendered academic by our decision or otherwise lack merit.

ORDERED that the order is affirmed, with costs.

FOOTNOTES

1.   On appeal, plaintiff concedes that his claim under practical location is precluded by the previous order, despite the “typical language” utilized by this Court in remitting the case back to Supreme Court.

Reynolds Fitzgerald, J.

Egan Jr., J.P., Aarons, Fisher and McShan, JJ., concur.