O'Donnell v. Ferguson

Appeal from an order of the Supreme Court, Erie County (Donna M. Siwek, J.), entered November 23, 2011. The order, inter alia, precluded plaintiff from offering evidence on the issue of whether he was a part-time employee.

It is hereby ordered that the order so appealed from is unanimously modified on the law by denying that part of the motion seeking to preclude plaintiff from offering evidence that, after this Court’s determination in Matter of O’Donnell v Ferguson ( 273 AD2d 905 , 906 [2000], Iv denied 96 NY2d 701 [2001]) that plaintiff was not a part-time employee, defendants made statements and engaged in conduct that was inconsistent with that determination, and as modified the order is affirmed without costs in accordance with the following memorandum:

In another prior appeal with respect to this action, we determined that Supreme Court abused its discretion in refusing to allow plaintiff to present evidence of defendant Robert Ferguson’s September 2007 deposition testimony that plaintiff was a part-time employee, which evidence was contrary to our determination in the CPLR article 78 proceeding in 2000 that plaintiff was not entitled to the protections of Town Law § 155 because he was not a part-time employee (O’Donnell v Ferguson, 68 AD3d 1681 , 1682 [2009]).

In the instant appeal, plaintiff appeals from an order that, inter alia, granted defendants’ motion in limine to preclude him from presenting further evidence on the issues whether he was a part-time employee and whether he was entitled to formal charges and a hearing prior to termination. We note at the outset that, although the parties do not address the issue of the appealability of an order determining a motion in limine, the order in this case is appealable (see Franklin Corp. v Prahler, 91 AD3d 49 , 54 [2011]). “Generally, an order ruling [on a motion in limine], even when made in advance of trial on motion papers constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission” (Innovative Transmis

Contrary to plaintiffs contention, the court did not abuse its discretion by precluding plaintiff from relitigating the issue whether plaintiff was a part-time employee entitled to the protections of Town Law § 155. That issue was decided in defendants’ favor on a prior appeal (O’Donnell, 273 AD2d at 906 ), and “[t]he doctrine of collateral estoppel precludes a party from relitigating ‘an issue which has previously been decided against him [or her] in a proceeding in which he [or she] had a fair opportunity to fully litigate the point’ ” (Kaufman v Eli Lilly & Co., 65 NY2d 449 , 455 [1985]; see Pinnacle Consultants v Leucadia Natl. Corp., 94 NY2d 426 , 431-432 [2000]).

Nevertheless, although the court has broad discretion to rule on the admissibility of evidence (see Carlson v Porter [appeal No. 2], 53 AD3d 1129 , 1132 [2008], lv denied 11 NY3d 708 [2008]), we agree with plaintiff that the court abused its discretion by granting that part of defendants’ motion in limine seeking to preclude plaintiff from offering evidence that, after our 2000 determination that plaintiff was not a part-time employee, defendants made statements and engaged in conduct that was inconsistent with our 2000 determination (see O’Donnell, 68 AD3d at 1682 ). We therefore modify the order accordingly. In this case, the record on appeal includes the entire transcript of Ferguson’s deposition testimony, in which Ferguson admitted that plaintiff was a part-time employee. He further admitted both that, after we issued our determination in 2000, another police officer with the same employment classification as plaintiff was presented with formal charges and the opportunity for a hearing prior to termination, and that the Town of Evans unsuccessfully attempted to change the employment classification of certain police officers. The record also includes copies of the formal charges offered to the other police officer, resolutions of the Town Board dated April 17, 2002, appointing certain