| Madden v Town of Greene |
| 2012 NY Slip Op 03505 [95 AD3d 1426] |
| May 3, 2012 |
| Appellate Division, Third Department |
| 2—Kurtis R. Madden, an Infant, by Wendy L. Madden, HisParent and Guardian, et al., Respondents, v Town of Greene, Appellant et al.,Defendants. |
—[*1] Thorn, Gershon, Tymann & Bonanni, Albany (Arthur H. Thorn of counsel), forrespondents.
Stein, J. Appeal from an order of the Supreme Court (Rumsey, J.), entered March 23, 2011 inChenango County, which partially denied a motion by defendant Town of Greene to precludecertain evidence.
In June 2003, plaintiff Kurtis R. Madden (hereinafter plaintiff) was seriously injured in amotor vehicle accident while driving with a friend on Hotchkiss Road in the Town of Greene,Chenango County. While plaintiff has no memory of the accident, his passenger testified at aGeneral Municipal Law § 50-h hearing that plaintiff lost control of the vehicle whilereacting to an oncoming dump truck that appeared to be in plaintiff's lane of travel. The vehicledriven by plaintiff went off the road in the vicinity of a culvert and ultimately came to rest on itsroof. In September 2004, plaintiffs commenced this action against the owner and driver of thedump truck and defendant Town of Greene (hereinafter defendant).
Plaintiffs allege, among other things, that defendant failed to install adequate guide rails orbarriers to protect against the particular hazards of the roadway. The issue on this appeal centersaround defendant's motion in limine to preclude plaintiffs from presenting certain [*2]evidence relating to defendant's maintenance of the guide rail by theculvert near the site of the accident. As relevant here, Supreme Court denied defendant's motionwith respect to photographs of the guide rail, evidence referring to related highway designstandards and evidence regarding the lack of warning signs in the area of the accident.[FN*]Defendant now appeals.
We now dismiss defendant's appeal as premature. Contrary to defendant's contention, theorder appealed from does not "limit[ ] the legal theories of liability to be tried" (Strait vOgden Med. Ctr., 246 AD2d 12, 14 [1998]), nor does it appear to be " 'the functionalequivalent of a motion for partial summary judgment dismissing the complaint' " (Scalp &Blade v Advest, Inc., 309 AD2d 219, 224 [2003], quoting Rondout Elec. v Dover UnionFree School Dist., 304 AD2d 808, 810 [2003]; accord Franklin Corp. v Prahler, 91 AD3d 49, 54 [2011]).Defendant's argument that the evidence sought to be precluded pertained to claims that areallegedly time barred was first raised in defendant's reply affidavit with respect to the motion inlimine and, thus, was not properly before Supreme Court (see Willette v Willette, 53 AD3d 753, 755 [2008]; Luft v Luft, 52 AD3d 479, 480[2008]; see also Yechieli v GlissenChem. Co., Inc., 40 AD3d 988, 989 [2007]). Plaintiffs correctly acknowledge that, to theextent Supreme Court addressed such argument (in a footnote in its decision), the court'scomments do not constitute law of the case. Accordingly, insofar as this appeal is from an orderlimiting the admissibility of evidence, the order "constitutes, at best, an advisory opinion whichis neither appealable as of right nor by permission" (Strait v Ogden Med. Ctr., 246 AD2dat 14 [internal quotation marks and citations omitted]; accord Vaughan v Saint Francis Hosp., 29 AD3d 1133, 1135[2006]; compare Scalp & Blade v Advest, Inc., 309 AD2d at 223-224).
Mercure, J.P., Spain and Egan Jr., JJ., concur. Ordered that the appeal is dismissed, withcosts.
Footnote *: As a result of previous crossmotions by the parties, plaintiffs' claims of negligent maintenance and repair of the guide railwere dismissed on the basis that plaintiffs had not complied with defendant's prior written noticerequirement (see Local Law No. 1 [1974] of Town of Greene), but plaintiffs' claimsbased on negligent design and construction were not dismissed. That decision was affirmed bythis Court (64 AD3d 1117, 1119 [2009]).