Rott v. Negev, LLC
| Decision Date | 17 January 2013 |
| Parties | Gitta ROTT, Plaintiff–Appellant–Respondent, v. NEGEV, LLC, Defendant–Respondent, Hagivah, Inc., et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Duane Morris LLP, New York (Evangelos Michailidis of counsel), for appellant-respondent.
Kral Clerkin Redmond Ryan Perry & Van Etten LLP, Melville (Thomas F. Maher of counsel), for respondent.
Judgment, Supreme Court, New York County (Jeffrey K. Oing, J.), entered December 29, 2010, after a jury trial, awarding plaintiff a total of $139,270.75, and bringing up for review an order, same court (Carol R. Edmead, J.), dated October 25, 2010, to the extent it dismissed plaintiff's claim for lost rent, unanimously affirmed, without costs.
Contrary to Negev, LLC's position, the subject ruling is appealable, as the in limine order dismissing plaintiff's claim for lost rental income did not “merely determine[ ] the admissibility of evidence,” it “limit[ed] the scope of issues to be tried” ( Parker v. Mobil Oil Corp., 16 A.D.3d 648, 650, 793 N.Y.S.2d 434 [2d Dept. 2005],affd. on other grounds 7 N.Y.3d 434, 824 N.Y.S.2d 584, 857 N.E.2d 1114 [2006] ). In the absence of a proffer as to how plaintiff intended to establish lost rental income and to show that the loss was proximately caused by defendants' conduct, the trial court properly precluded plaintiff from offering evidence on this claim ( see e.g. Lee Kin Chiu v. City of New York, 174 Misc.2d 422, 426, 666 N.Y.S.2d 872 [App. Term, 2d Dept. 1997] ).
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