        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1186
CA 12-00466
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.


JOHN O’DONNELL, PLAINTIFF-APPELLANT,

                    V                              MEMORANDUM AND ORDER

ROBERT FERGUSON, INDIVIDUALLY AND AS CHIEF OF
POLICE OF TOWN OF EVANS, ROBERT R. CATALINO, II,
INDIVIDUALLY AND AS SUPERVISOR OF TOWN OF EVANS,
AND THOMAS A. PARTRIDGE, THOMAS A. CSATI,
KAREN C. ERICKSON AND JOSEPH GOVENETTIO,
INDIVIDUALLY AND AS MEMBERS OF TOWN BOARD OF
TOWN OF EVANS, DEFENDANTS-RESPONDENTS.


CHIACCHIA & FLEMING, LLP, HAMBURG (CHRISTEN ARCHER PIERROT OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

SMITH, MURPHY & SCHOEPPERLE, LLP, BUFFALO (STEPHEN P. BROOKS OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     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, lv denied 96 NY2d 701) 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:
Plaintiff, a former police officer employed by the Town of Evans,
commenced this action seeking damages pursuant to 42 USC § 1983 and
Labor Law § 201-d for defendants’ allegedly illegal termination of his
employment. In 1998, defendants terminated plaintiff’s employment
without affording him notice or a hearing. Plaintiff subsequently
commenced a CPLR article 78 proceeding seeking, inter alia,
reinstatement to his position and, on a prior appeal, we modified the
judgment by dismissing the petition in its entirety on the ground that
plaintiff “was a ‘special’ police officer appointed pursuant to Town
Law § 158 (1) who served at the pleasure of the Town Board [of the
Town of Evans (Town Board)] and therefore was not entitled to the
protections of Town Law § 155” (Matter of O’Donnell v Ferguson, 273
AD2d 905, 906, lv denied 96 NY2d 701). In a prior appeal with respect
                                 -2-                          1186
                                                         CA 12-00466

to this action, we determined that the doctrine of collateral estoppel
did not preclude this action because “none of the issues relating to
the federal constitutional causes of action and the cause of action
under Labor Law § 201-d was decided in the prior proceeding”
(O’Donnell v Ferguson, 23 AD3d 1005, 1007). We further noted that
“[d]efendants are incorrect to the extent that they contend that, as
an ‘at-will’ employee, plaintiff could be terminated for a
constitutionally impermissible or statutorily proscribed purpose”
(id.).

     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).

     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). “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
Transmission & Engine Co., LLC v Massaro, 63 AD3d 1506, 1507 [internal
quotation marks omitted]; see Scalp & Blade v Advest, Inc., 309 AD2d
219, 224). Here, however, the order precluded the introduction of
evidence on the issue whether defendants were liable for punitive
damages. “[B]ecause the court’s order ‘has a concretely restrictive
effect on the efforts of plaintiff[] to . . . recover [punitive]
damages, . . . defendant[s’] motion . . . [was] the functional
equivalent of a motion for partial summary judgment dismissing the
complaint insofar as it sought [such] damages’ ” (Franklin, 91 AD3d at
54). “[A]n order that . . . ‘limits the legal theories of liability
to be tried’ or the scope of the issues at trial . . . is appealable”
(Scalp & Blade, 309 AD2d at 224).

     Contrary to plaintiff’s 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; see Pinnacle Consultants
v Leucadia Natl. Corp., 94 NY2d 426, 431-432).
                                 -3-                         1186
                                                        CA 12-00466

     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, lv denied 11 NY3d 708), 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 individuals to the position of “Special Policemen
pursuant to Section 158 of the Town Law,” and subsequent resolutions
of the Town Board dated June 5, 2002, reappointing those same
individuals to positions as “part-time Police Officers.” We conclude
that plaintiff should be permitted to present that evidence as well as
any similar evidence of defendants’ statements and actions after our
determination in 2000 that were inconsistent with that determination
for the purpose of demonstrating defendants’ intent with respect to
their conduct toward plaintiff (see id.).




Entered:   November 16, 2012                   Frances E. Cafarell
                                               Clerk of the Court
