Thursday, May 19, 2016

Recent Second Department Decision Reminds Us That the Granting of an In Limine Motion is Not Appealable, But Such Issues Can Be Raised on Appeal From A Subsequent Judgment

In Shanoff v. Golyan, on the eve of trial the Supreme Court granted the defendants' motions in limine to preclude plaintiff from offering certain evidence against the defendants regarding the post-operative care of plaintiff's decedent. Ultimately, the Supreme Court granted summary judgment to those defendants and plaintiff appealed the summary judgment order. Judgment was also entered in favor of the defendants and plaintiff appealed that as well. 

On appeal from the judgment, the Second Department considered the issues that were raised on the in limine motions. The Court specifically noted that plaintiff could not have appealed from the order granting the motions in limine because that order concerned evidentiary rulings which are not appealable, either as of right or by permission (see CPLR 5701). However, the issues raised in that order were properly brought up for review and were considered on the appeal from the judgment (see CPLR 5501[a][1]). On the merits, the Court then reversed the judgment, denied the motions and reinstated the plaintiff's complaint. 

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