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Santos v. Nicolas

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


September 22, 2009

JOSE A. SANTOS, PLAINTIFF-RESPONDENT,
v.
FRANK NICOLAS, ET AL., DEFENDANTS-APPELLANTS.

Appeal from order, Supreme Court, Bronx County (Cynthia S. Kern, J.), entered on or about May 12, 2009, which granted plaintiff's motion to preclude the testimony of defendants' proposed expert witness, unanimously dismissed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Gonzalez, P.J., Andrias, Catterson, Acosta, Abdus-Salaam, JJ.

8092/05

An evidentiary ruling made before trial is generally reviewable only in connection with the appeal from the judgment rendered after trial (Weatherbee Constr. Corp. v Miele, 270 AD2d 182 [2000]). Accordingly, no discrete appeal lies from an order granting plaintiff's motion to preclude proposed expert testimony (Rodriguez v Ford Motor Co., 17 AD3d 159, 160 [2005]). Since the order defendants seek to challenge was nothing more than an evidentiary ruling, it did not go to the merits of the case (cf. Matter of City of New York v Mobil Oil Corp., 12 AD3d 77 [2004]).

Were we to reach the merits of the appeal, we would affirm. At the Frye hearing (Frye v United States, 293 F 1013 [DC Cir 1923]) to determine the admissibility of proffered expert witness testimony opining on the causation of plaintiff's personal injuries, defendants failed to establish that this expert's theory was generally accepted in the scientific community. The exclusion of such testimony was thus a provident exercise of the court's discretion (see Coratti v Wella Corp., 56 AD3d 343 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090922

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