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O'Buckley v. County of Chemung

Supreme Court of New York, Third Department

April 6, 2017

SHARRON L. O'BUCKLEY, Individually and as Administrator of the Estate of MICHAEL O'BUCKLEY, Deceased, Appellant,
v.
COUNTY OF CHEMUNG et al., Respondents.

          Calendar Date: February 23, 2017

          Sidney P. Cominsky, LLC, Syracuse (Sidney P. Cominsky of counsel), for appellant.

          Barclay Damon, LLP, Elmira (Matthew J. Rosno of counsel), for County of Chemung, respondent.

          Lippman O'Connor, Buffalo (Gerard E. O'Connor of counsel), for Town of Southport, respondent.

          Before: Peters, P.J., McCarthy, Garry, Rose and Aarons, JJ.

          MEMORANDUM AND ORDER

          ROSE, J.

         Appeals (1) from an order of the Supreme Court (O'Shea, J.), entered October 26, 2015 in Chemung County, which, among other things, partially denied plaintiff's motion in limine, and (2) from an order of said court, entered January 22, 2016 in Chemung County, which, among other things, partially granted defendants' motion in limine.

         Plaintiff's 17-year-old son (hereinafter decedent) died as a result of the injuries he sustained when he lost control of his vehicle while traveling northbound on County Route 26 (also known as Christian Hollow Road) in the Town of Southport, Chemung County. As decedent's vehicle rounded a downhill curve, it slid off the roadway and struck a tree in the front yard of 41 Christian Hollow Road. Plaintiff, individually and as administrator of decedent's estate, commenced this action to recover damages for decedent's wrongful death, alleging that defendants, among other things, were aware of the hazardous nature of the roadway based upon several prior accidents that occurred in the same approximate location [1]. In anticipation of trial, plaintiff filed a motion in limine seeking to, as is relevant here, deny any motion by defendants to preclude evidence of prior accidents. Defendants responded by moving to preclude plaintiff from offering evidence of prior accidents, as well as proof pertaining to decedent's lost future earnings.

         In an October 2015 order, Supreme Court preliminarily determined that, before evidence of prior accidents could be admitted at trial, plaintiff would have to make an offer of proof, outside the presence of the jury, demonstrating that such evidence would reveal similar accidents. As to lost future earnings, Supreme Court found that this proof was speculative and would likely be precluded, absent a strong offer of proof. A jury trial thereafter ensued and, during her opening statement, plaintiff told the jury that there had been 14 prior accidents on Christian Hollow Road and that an economist would testify concerning decedent's lost future earnings. After the completion of all opening statements and following a lengthy on-the-record discussion, Supreme Court granted defendants' request for a mistrial and, in a January 2016 order, precluded plaintiff from offering evidence of prior accidents or decedent's lost future earnings in a second trial. Plaintiff now appeals from Supreme Court's October 2015 and January 2016 orders. [2]

         We agree with defendants that no appeal lies from the October 2015 order inasmuch as it merely delayed ruling on the admissibility of evidence until trial. In any event, the only issue that plaintiff raises with respect to the October 2015 order has been rendered moot by Supreme Court's January 2016 order. In contrast, we find that the January 2016 order is appealable, despite its in limine nature, in light of its effect here of significantly narrowing the scope of the issues to be tried at a second trial (see Calabrese Bakeries, Inc. v Rockland Bakery, Inc., 139 A.D.3d 1192, 1193-1194 [2016]; Vaughan v Saint Francis Hosp., 29 A.D.3d 1133, 1135 [2006]).

         Turning to the merits, we cannot agree with plaintiff's contention that Supreme Court erred by precluding her from offering evidence concerning prior accidents without affording her an opportunity to make an offer of proof. As a backdrop, "[i]t is well settled that proof of a prior accident, whether offered as proof of the existence of a dangerous condition or as proof of notice thereof, is admissible only upon a showing that the relevant conditions of the subject accident and the previous one were substantially the same" (Hyde v County of Rensselaer, 51 N.Y.2d 927, 929 [1980]; accord Cramer v Kuhns, 213 A.D.2d 131, 136 n [1995], lv dismissed 87 N.Y.2d 860');">87 N.Y.2d 860 [1995]; see Dudley v County of Saratoga, 145 A.D.2d 689, 690 [1988], lv denied 73 N.Y.2d 710');">73 N.Y.2d 710 [1989]). Further, trial courts have broad discretion in ruling on the admissibility of evidence and, therefore, those rulings will not be disturbed on appeal absent an abuse of that discretion (see Mazella v Beals, 27 N.Y.3d 694, 709 [2016]; Sadek v Wesley, 117 A.D.3d 193, 199 [2014], affd 27 N.Y.3d 982 [2016]; Breckinridge v Breckinridge, 103 A.D.2d 900, 901 [1984]).

         A review of the colloquy between Supreme Court and the parties that occurred after opening statements establishes that plaintiff was not only afforded an opportunity to make an offer of proof concerning evidence of prior accidents, but she did, in fact, make such an offer. In this regard, the transcript reflects that plaintiff highlighted that the proof she was seeking to admit into evidence was accident data from the Department of Transportation, which reflected that 14 prior accidents had occurred in the same general area as decedent's accident, and the deposition testimony of a tow truck operator who had towed several vehicles out of the front yard of 41 Christian Hollow Road. In support of her position that this evidence was admissible, plaintiff argued that the fact that the prior accidents had occurred within a distance equal to "one city block" of decedent's accident was "enough" of a similarity to warrant admission of all of the prior accidents into evidence. The record reflects that plaintiff repeated this argument at numerous points during the colloquy and also asserted that, contrary to defendants' position, "it's just not the law that [she has] to prove" the conditions regarding "each and every collision" because the only dispositive factor is "where [the accident] occurs."

         Although plaintiff pointed to various documents in the record during oral argument on her appeal in an effort to establish that certain of the prior accidents occurred under the same conditions as decedent's accident, she failed to point to these documents or articulate this argument before Supreme Court, and she did not request any further opportunity to do so. Thus, in our view, the record refutes plaintiff's claim that Supreme Court denied her the opportunity to make an offer of proof and reflects, instead, that the limited offer that she made was insufficient to show that the conditions of the prior accidents and decedent's accident were "substantially the same" (Hyde v County of Rensselaer, 51 N.Y.2d at 929; see Kane v Triborough Bridge & Tunnel Auth., 8 A.D.3d 239, 241 [2004]; Marshall v Town of Riverhead, 267 A.D.2d 216, 217 [1999], lv denied 95 N.Y.2d 756');">95 N.Y.2d 756 [2000]).

         Plaintiff next contends that her proffered economist's testimony regarding decedent's lost future earnings is not speculative and, therefore, Supreme Court erred in precluding this evidence. While the law is clear that "the absence of dollars and cents proof of pecuniary loss does not relegate the [plaintiff] to recovery of nominal damages only" in a wrongful death action (Parilis v Feinstein, 49 N.Y.2d 984, 985 [1980]), evidence that amounts to no more than mere speculation "as to how much a young decedent would have earned had he [or she] continued to live... does not serve as an adequate basis for determination of damages" (Wanamaker v Pietraszek, 107 A.D.2d 1020, 1021 [1985]). Rather, such evidence is admissible only "if there is [a] sufficient probability of [the] ...


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