NEWMAN v. ESHGHI (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, the defendants appeal from an order of the Supreme Court, Rockland County (Hal B. Greenwald, J.), dated September 9, 2024.  The order, insofar as appealed from, denied the defendants' separate motions in limine to preclude the testimony of the plaintiffs' urologic oncology and economic experts, and to preclude the plaintiffs from offering evidence related to treatment that occurred prior to February 28, 2013, as barred by the statute of limitations.

ORDERED that the appeal from so much of the order as denied the defendants' motions in limine to preclude the testimony of the plaintiffs' urologic oncology and economic experts is dismissed;  and it is further,

ORDERED that on the Court's own motion, the notice of appeal from so much of the order as denied the defendants' motion in limine to preclude the plaintiffs from offering evidence related to treatment that occurred prior to February 28, 2013, as barred by the statute of limitations is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c] );  and it is further,

ORDERED that the order is affirmed insofar as reviewed;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

The defendant Abdolmajid Eshghi diagnosed the decedent with renal cell carcinoma and, on November 29, 2010, performed a radical nephrectomy to treat the cancer.  Through March 21, 2013, Eshghi saw the decedent for medical treatment on nine more occasions.  On March 21, 2013, Eshghi ordered the decedent to undergo a chest x-ray which showed several nodular densities consistent with metastatic cancer in the lung.

The plaintiffs, the decedent's wife and infant children, subsequently commenced this action against Eshghi and Eshghi's employer, inter alia, to recover damages for medical malpractice and wrongful death.  The plaintiffs alleged that Eshghi's failure to timely and regularly order imaging studies of the decedent's chest constituted malpractice and that the alleged malpractice was a proximate cause of the spread of the decedent's cancer and his death.  The defendants' motion for summary judgment dismissing the complaint was denied in an order dated January 18, 2022.

On September 3, 2024, one day before jury selection was scheduled to commence, the defendants filed several motions in limine, including a motion to preclude the plaintiffs from offering evidence relating to care and treatment that occurred prior to February 28, 2013, as barred by the statute of limitations (hereinafter the fourth motion in limine) and separate motions in limine relating to the testimony of the plaintiffs' expert urologic oncologist and expert economist (hereinafter the third and fifth motions in limine).  In an order dated September 9, 2024, the Supreme Court, among other things, denied those motions in limine.  The defendants appeal.

At the outset, the appeal from so much of the order dated September 9, 2024, as denied the defendants' third and fifth motions in limine must be dismissed, as those determinations constitute evidentiary rulings “which, even when ‘made in advance of trial on motion papers ․ [are] neither appealable as of right nor by permission’ ” (Boeke v. Our Lady of Pompei School, 73 AD3d 825, 826, quoting Cotgreave v Public Adm'r of Imperial County [Cal.], 91 A.D.2d 600, 601;  see Washington v. Todd, 210 AD3d 822, 822–823).

We grant leave to appeal from so much of the order as denied the fourth motion in limine, as that portion of the order did not decide a motion made on notice (see CPLR 5701[a];  Sholes v. Meagher, 100 N.Y.2d 333, 335).  As the plaintiffs correctly contend, the defendants' fourth motion in limine “was the functional equivalent of a motion for summary judgment” dismissing the complaint as barred by the statute of limitations (Matter of City of New York v. Mobil Oil Corp., 12 AD3d 77, 81;  see Ofman v. Ginsberg, 89 AD3d 908, 909;  Parker v. Mobil Oil Corp., 16 AD3d 648, 650, affd 7 NY3d 434).  “[A] motion in limine is an inappropriate substitute for a motion for summary judgment” (Rondout Elec. v Dover Union Free School Dist., 304 A.D.2d 808, 810–811), and “ ‘[g]enerally, successive motions for summary judgment should not be entertained, absent a showing of newly discovered evidence or other sufficient cause’ ” (GLND 1945, LLC v. Ballard, 209 AD3d 993, 994, quoting Sutter v. Wakefern Food Corp., 69 AD3d 844, 845;  see Brilliantine v East Hampton Fuel Oil Corp., 221 AD3d 949, 950).  Accordingly, and in the absence of any showing of newly discovered evidence or other sufficient cause, the Supreme Court properly denied the fourth motion in limine (see U.S. Bank Trust, N.A. v. Green–Stevenson, 208 AD3d 1205, 1206;  Ofman v. Ginsberg, 89 AD3d at 909), albeit on alternative grounds.

In light of our determination, the defendants' remaining contentions need not be reached.

LASALLE, P.J., CONNOLLY, TAYLOR and GOLDBERG VELAZQUEZ, JJ., concur.