New York Supreme and/or Appellate Courts Appellate Division, First Department
January 17, 2013
9026-GITTA ROTT, PLAINTIFF-APPELLANT-RESPONDENT,
NEGEV, LLC, DEFENDANT-RESPONDENT, HAGIVAH, INC., ET AL., DEFENDANTS.
Rott v Negev, LLC
Decided on January 17, 2013
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.
Mazzarelli, J.P., Andrias, DeGrasse, Richter, Clark, JJ.
Judgment, Supreme Court, New York County (Jeffrey K. Oing, J.), entered December 29, 2010, after a jury trial, awarding plaintiff a total of $139,270.75, and bringing up for review an order, same court (Carol R. Edmead, J.), dated October 25, 2010, to the extent it dismissed plaintiff's claim for lost rent, unanimously affirmed, without costs.
Contrary to Negev, LLC's position, the subject ruling is appealable, as the in limine order dismissing plaintiff's claim for lost rental income did not "merely determine the admissibility of evidence," it "limit[ed] the scope of issues to be tried" (Parker v Mobil Oil Corp., 16 AD3d 648, 650 [2d Dept 2005], affd on other grounds 7 NY3d 434 ). In the absence of a proffer as to how plaintiff intended to establish lost rental income and to show that the loss was proximately caused by defendants' conduct, the trial court properly precluded plaintiff from offering evidence on this claim (see e.g. Lee Kin Chiu v City of New York, 174 Misc2d 422, 426 [App Term, 2d Dept 1997]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 17, 2013
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