Opinion
12728N Index No. 653191/12 Case No. 2020-01401
12-29-2020
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, as Subrogee of Consolidated Edison Company of New York, Inc., Plaintiff, Consolidated Edison Company of New York, Inc., Plaintiff–Respondent, v. Sassine RAZZOUK, et al., Defendants, Rudell & Associates, Inc., et al., Defendants–Appellants.
The Howley Law Firm P.C., New York (John J.P. Howley of counsel), for appellants. Scott A. Levinson, New York (Michael S. Davi of counsel), for respondent.
The Howley Law Firm P.C., New York (John J.P. Howley of counsel), for appellants.
Scott A. Levinson, New York (Michael S. Davi of counsel), for respondent.
Webber, J.P., Mazzarelli, Gesmer, Moulton, Gonza´lez, JJ.
Appeal from order, Supreme Court, New York County (Margaret A. Chan, J.), entered December 13, 2019, which, to the extent appealed from, denied defendants-appellants' motion to preclude evidence of any alleged misrepresentations and/or breaches of contract not previously pled in the second amended complaint in support of the respective fraud and breach of contract causes of action, and held that plaintiffs could rely upon such evidence by amending their interrogatory answers in the future, unanimously dismissed, without costs, as taken from a nonappealable order.
"An evidentiary ruling made before trial is generally reviewable only in connection with an appeal from a judgment rendered after trial" ( Seward Park Hous. Corp. v. Greater N.Y. Mut. Ins. Co., 70 A.D.3d 468, 468, 896 N.Y.S.2d 8 [1st Dept. 2010] ; see Deonarine v. Montefiore Med. Ctr., 113 A.D.3d 496, 978 N.Y.S.2d 839 [1st Dept. 2014] ). Here, defendants' motion to preclude, which was made to limit plaintiffs' allegations to those asserted in a second amended complaint, notwithstanding that outstanding discovery remained, including critical depositions, did not involve an evidentiary issue pertaining to the merits of the controversy or a substantial right to justify appellate review (see CPLR 5701[a][2][iv], [v] ; Knafo v. Mount Sinai Hosp., 184 A.D.3d 478, 124 N.Y.S.3d 188 [1st Dept. 2020] ; Frankel v. Vernon & Ginsburg, LLP, 118 A.D.3d 479, 988 N.Y.S.2d 28 [1st Dept. 2014] ).