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Angelicola v. Patrick Heating of Mohawk Valley

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


October 1, 2010

ROBERTO ANGELICOLA AND LYNN ANGELICOLA, PLAINTIFFS-APPELLANTS,
v.
PATRICK HEATING OF MOHAWK VALLEY, INC. AND DAVID W. PATRICK,
DEFENDANTS-RESPONDENTS.

Appeal from an order of the Supreme Court, Oneida County (Anthony F. Shaheen, J.), entered June 19, 2009. The order granted the cross motion of defendants for the preclusion of certain evidence.

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.

PRESENT: SMITH, J.P., FAHEY, SCONIERS, PINE, AND GORSKI, JJ.

It is hereby ORDERED that said appeal is unanimously dismissed without costs.

Memorandum

Plaintiffs appeal from an order that granted defendants' cross motion in limine seeking to preclude the admission of certain evidence. The appeal must be dismissed on the ground that an evidentiary 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' " (Winograd v Price, 21 AD3d 956). Contrary to the contention of plaintiffs, the order on appeal does not limit the scope of the issues to be tried and thus is not appealable on that ground (cf. Innovative Transmission & Engine Co., LLC v Massaro, 63 AD3d 1506, 1508; Rondout Elec. v Dover Union Free School Dist., 304 AD2d 808, 810).

20101001

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