“evidentiary rulings which, even when made in advance of trial on motion papers, are not appealable, either as of right or by permission”

CPLR § 5701 Appeals to appellate division from supreme and county courts

Rosenfeld v Baker, 2010 NY Slip Op 08087 (App. Div., 2nd 2010)

The appeal from the order dated September 8, 2008, must be dismissed because the portions of the order appealed from concern evidentiary rulings which, even when made in advance of trial on motion papers, are not appealable, either as of right or by permission (seeCPLR 5701; Barnes v Paulin, 52 AD3d 754; Citlak v Nassau County Med. Ctr., 37 AD3d 640; Cotgreave v Public Adm'r of Imperial County [Cal], 91 AD2d 600, 601). The issues raised on the appeal from the order dated September 8, 2008, are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]). The appeal from the order dated January 12, 2009, must be dismissed, as no appeal lies from an order denying reargument.

Contrary to the plaintiff's contention, the defendants' medical experts were properly permitted to testify at trial, inter alia, based upon their review of the plaintiff's medical records (see Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139). The fact that the defendants' psychiatric expert did not examine the plaintiff goes only to the weight of his testimony, not to its admissibility (see Weigert v Baker, 217 AD2d 1011).