                            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
