| Innovative Transmission & Engine Co., LLC v Massaro |
| 2009 NY Slip Op 04456 [63 AD3d 1506] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| Innovative Transmission & Engine Company, LLC, et al.,Appellants, v Richard S. Massaro, Jr., et al., Respondents, et al.,Defendant. |
—[*1] Harris Beach PLLC, Buffalo (Andrew O. Miller of counsel), for defendants-respondentsRichard S. Massaro, Jr. and Richard S. Massaro, Sr. Harter, Secrest & Emery LLP, Buffalo (John G. Horn of counsel), fordefendants-respondents James Raia, A.P. Bersohn and Co., LLC, CPAs and Raia, Bredefeld &Associates, P.C.
Appeal from an order of the Supreme Court, Erie County (Timothy J. Walker, J.), enteredJanuary 18, 2008. The order, among other things, granted the motion of defendants James Raia,A.P. Bersohn and Co., LLC, CPAs, and Raia, Bredefeld & Associates, P.C. seeking to precludecertain evidence at trial and requesting that judicial notice be taken.
It is hereby ordered that said appeal from the order insofar as it concerned the cross motionand that part of the motion requesting that judicial notice be taken is unanimously dismissed andthe order is otherwise modified on the law by denying that part of the motion seeking to precludecertain evidence and as modified the order is affirmed without costs.
Memorandum: Plaintiffs commenced this action to recover damages for, inter alia,conversion of corporate assets of plaintiff Innovative Transmission & Engine Company, LLC(ITEC). Plaintiffs appeal from an order that, inter alia, granted what was in effect a motion inlimine (hereafter, motion in limine) of defendants James Raia, A.P. Bersohn and Co., LLC,CPAs, and Raia, Bredefeld & Associates, P.C. (collectively, Raia defendants) seeking, inter alia,to preclude plaintiffs from offering evidence that ITEC owned the assets in question. We note atthe outset that we dismiss the appeal from the order insofar as it concerned plaintiffs' crossmotion in limine seeking to preclude defendants from offering evidence that ITEC's owner andprincipal has a criminal conviction and that part of the motion in limine of the Raia defendantsrequesting that judicial notice be taken of that conviction. Generally, an order "ruling [on a [*2]motion in limine], even when made 'in advance of trial on motionpapers constitutes, at best, an advisory opinion which is neither appealable as of right nor bypermission' " (Winograd v Price, 21AD3d 956 [2005]; see Citlak vNassau County Med. Ctr., 37 AD3d 640 [2007]). "Inasmuch as [those parts of] theorder herein 'merely adjudicate[d] the admissibility of evidence' and do[ ] not affect a substantialright, no appeal lies as of right from [those parts of] the order" (Shahram v St. Elizabeth School, 21AD3d 1377, 1378 [2005]).
That part of the order granting the Raia defendants' motion in limine to the extent that itsought to preclude plaintiffs from submitting evidence that ITEC owned the assets in question inthis litigation is appealable, however, because "an order which limits the scope of issues to betried is appealable" (Parker v Mobil OilCorp., 16 AD3d 648, 650 [2005], affd 7 NY3d 434 [2006], rearg denied8 NY3d 828 [2007]; see Scalp & Blade v Advest, Inc., 309 AD2d 219, 223-225[2003]; Rondout Elec. v Dover Union Free School Dist., 304 AD2d 808, 810-811[2003]). In their motion in limine, the Raia defendants contended that plaintiffs are collaterallyestopped from establishing ITEC's ownership of the corporate assets that were allegedlyconverted, because the jury verdict in the criminal case of ITEC's owner and principal in UnitedStates District Court conclusively established that ITEC did not own those assets. We agree withplaintiffs that Supreme Court erred in granting that part of the motion, and we therefore modifythe order accordingly.
A party will be collaterally estopped from relitigating an issue only if the issue wasnecessarily determined in the prior litigation and the party had "a full and fair opportunity tocontest the decision now said to be controlling" (Buechel v Bain, 97 NY2d 295, 304[2001], cert denied 535 US 1096 [2002]; see Kaufman v Eli Lilly & Co., 65NY2d 449, 455 [1985]). The Court of Appeals has held that, "in appropriate situations, an issuedecided in a criminal proceeding may be given preclusive effect in a subsequent civil action"(D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990]; see City of New York v College PointSports Assn., Inc., 61 AD3d 33, 41 [2009]). In the event that the issue was not"necessarily determined in the criminal proceeding," the doctrine of collateral estoppel does notapply (Allstate Ins. Co. v Zuk, 78 NY2d 41, 46 [1991]; see Hughes v Farrey, 30 AD3d244, 248 [2006], lv dismissed 8 NY3d 841 [2007]). Here, the Raia defendants failedto establish that the issue of the ownership of ITEC's corporate assets was necessarily decided inthe prior criminal trial. The owner and principal of ITEC was convicted following a jury trial of,inter alia, defrauding a federally insured bank by transferring assets of one of his othercorporations, World Auto Parts, Incorporated (WAP), to ITEC to strip a bank of its securityinterests in those assets. The issue before the jury in the criminal trial was whether the assetswere removed from WAP and transferred. Thus, the jury was not required to determine whetherITEC owned or legally possessed the assets, rendering the doctrine of collateral estoppelinapplicable in this case. Present—Scudder, P.J., Smith, Peradotto, Carni and Green, JJ.