Fontana v. LaRosa

In an action to recover damages for medical malpractice, etc., the defendant Tameshwar Ammar appeals from an order of the Supreme Court, Suffolk County (Baisley, J.), dated May 18, 2009, which denied his motion to preclude certain testimony of the plaintiffs’ expert witness or to direct that witness to submit to a hearing pursuant to Frye v United States ( 293 F 1013 [1923]).

The order appealed from, which denied the appellant’s motion to preclude certain testimony of the plaintiffs’ expert witness or to direct that witness to submit to a hearing pursuant to Frye v United States ( 293 F 1013 [1923]), was, in effect, an evidentiary ruling. Such a ruling, “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” (Savarese v City of N.Y. Hous. Auth., 172 AD2d 506 , 509 [1991]; see Hering v Lighthouse 2001, LLC, 21 AD3d 449 , 451-452 [2005]). Dillon, J.P., Miller, Chambers and Lott, JJ., concur.