State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 11, 2015 520173 

________________________________

JOSE HURTADO, as Administrator

of the Estate of JOSE A.

HURTADO, Deceased,

Appellant,

v MEMORANDUM AND ORDER

CAROL A. WILLIAMS,

Defendant,

and

BLACK BEAR TAVERN AND 

 RESTAURANT, INC., 

 Individually and Doing 

 Business as THE BLACK BEAR,

Respondent.

________________________________

Calendar Date: April 20, 2015

Before: Lahtinen, J.P., Rose, Devine and Clark, JJ.

__________

Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara &

Wolf, LLP, Lake Success (David T. Verschell of counsel), for

appellant.

Costello, Cooney & Fearon, PLLC, Camillus (Maureen G.

Fatcheric of counsel), for respondent.

__________

Devine, J.

Appeal from an order of the Supreme Court (Becker, J.),

entered January 27, 2014 in Delaware County, which granted a

motion by defendant Black Bear Tavern and Restaurant, Inc. to

preclude plaintiff's expert testimony.
-2- 520173 

As set forth in our prior decision (112 AD3d 1047 [2013]),

this case stems from a fatal automobile accident in which a

vehicle driven by defendant Carol A. Williams collided with one

driven by Jose A. Hurtado (hereinafter decedent). Prior to the

accident, Williams had been drinking at a tavern operated by

defendant Black Bear Tavern and Restaurant, Inc. Plaintiff, the

administrator of decedent's estate, commenced this action against

defendants and asserted General Obligations Law § 11-101 and

common-law negligence claims. Plaintiff served a response to

defendants' combined discovery demands indicating that he

intended to call at trial toxicologist Elkin Simson. Simson,

relying upon a blood test that showed that Williams had a blood

alcohol content of .14% approximately six hours after the

accident, opined that Williams would have been visibly

intoxicated and had an even higher blood alcohol content at the

time she was drinking at the tavern. Black Bear moved to

preclude the testimony of Simson at trial. After conducting a

Frye hearing, Supreme Court granted the motion. Plaintiff now

appeals.

It is well settled that "an order which merely determines

the admissibility of evidence, 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" (Brindle v

Soni, 41 AD3d 938, 939 [2007] [internal quotation marks and

citations omitted]; see Lynch v Carlozzi, 121 AD3d 1308, 1309

[2014]). Supreme Court precluded plaintiff from offering an

expert opinion as to "the extrapolated blood alcohol content

[and] the physiological condition" of Williams while she was at

the tavern, crediting the testimony of Black Bear's expert that

such an opinion could not be reliably drawn from the available

proof.1 Regardless of whether Supreme Court abused its

discretion in making that determination, it was plainly an

evidentiary ruling that did not "limit[] the scope of the issues

1 In the Frye context, a court may exclude an expert

opinion if "there is simply too great an analytical gap between

the data and the opinion proffered" (General Elec. Co. v Joiner,

522 US 136, 146 [1997]; accord Cornell v 360 W. 51st St. Realty,

LLC, 22 NY3d 762, 781 [2014]).
-3- 520173 

or the theories of liability to be tried" (Lynch v Carlozzi, 121

AD3d at 1310; see Fontana v LaRosa, 74 AD3d 1016, 1017 [2010];

Santos v Nicolas, 65 AD3d 941, 941 [2009]). Indeed, counsel for

plaintiff acknowledged at oral argument that the preclusion of

the proffered expert evidence is not fatal to his claims and that

a trial will occur even if the evidence is not allowed. 

Appellate review thus must wait until after trial, when the

relevance of the evidence and the effect of the evidentiary

ruling may be properly assessed (see Bozzetti v Pohlmann, 94 AD3d

1201, 1201 [2012]; Ferrara v Kearney, 285 AD2d 890, 890 [2001]).

Lahtinen, J.P., Rose and Clark, JJ., concur.

ORDERED that the appeal is dismissed, with costs.

ENTER:

Robert D. Mayberger

Clerk of the Court