| Caplan v Tofel |
| 2009 NY Slip Op 00323 [58 AD3d 659] |
| January 20, 2009 |
| Appellate Division, Second Department |
| David R. Caplan, Appellant, v Lawrence E. Tofel,Defendant, and Tofel, Karan & Partners, P.C., Respondent. |
—[*1] Tofel & Partners, LLP, New York, N.Y. (Lawrence E. Tofel of counsel), forrespondent.
In an action to recover damages for breach of contract, the plaintiff appeals from (1) an orderof the Supreme Court, Dutchess County (Pagones, J.), dated March 8, 2007, which, upon a juryverdict, directed the entry of a judgment in favor of the defendant Tofel, Karan & Partners, P.C.,on its counterclaim and against him in the principal sum of $34,122.25, and (2) from a judgmentof the same court entered March 9, 2007, which, upon the order, is in favor of the defendantTofel, Karan & Partners, P.C., and against him in the principal sum of $34,122.25.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondent.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).[*2]
The Supreme Court has broad discretion in determiningthe materiality and relevance of proffered evidence (see Hyde v County of Rensselaer,51 NY2d 927 [1980]; Klempner v Leone, 277 AD2d 287 [2000]). The SupremeCourt providently exercised its discretion in denying the appellant's motion in limine to excludecertain evidence. The challenged evidence was relevant either to the nature of the servicesperformed by the respondent law firm for the appellant, or to the appellant's credibility. Further,the Supreme Court properly declined to admit into evidence a copy of an order in underlyinglitigation as cumulative to testimony already received concerning the outcome of that litigation(see Cor Can. Rd. Co., LLC v Dunn &Sgromo Engrs., PLLC, 34 AD3d 1364 [2006]; Clemons v Vanderpool, 289AD2d 1078, 1079 [2001]). Mastro, J.P., Miller, Carni and Chambers, JJ., concur.