                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 12, 2016                      519415
________________________________

CALABRESE BAKERIES, INC.,
   Individually and in the Name
   of and for the Benefit of
   B.M. BAKING COMPANY, INC.,
   et al.,
                    Appellants,             MEMORANDUM AND ORDER
      v

ROCKLAND BAKERY, INC., et al.,
                    Respondents.
________________________________


Calendar Date:   March 25, 2016

Before:   McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.

                             __________


      Hug Law PLLC, Albany (Matthew C. Hug of counsel), for
appellants.

      Higgins, Roberts & Suprunowicz, PC, Schenectady (Michael E.
Basile of counsel), for Rockland Bakery, Inc. and others,
respondents.

      Gleason, Dunn, Walsh & O'Shea, Albany (Ronald G. Dunn of
counsel), for WTF Bakery, Inc. and others, respondents.

                             __________


Clark, J.

      Appeal from an order of the Supreme Court (Kramer, J.),
entered October 18, 2013 in Schenectady County, which granted
motions by defendants Ignazio "Salvatore" Battaglia, Rockland
Bakery, Inc. and Rockland Bakery NY, Inc. to preclude certain
evidence.
                               -2-                519415

      The facts underlying this case are set forth in greater
detail in a prior decision of this Court (102 AD3d 1033 [2013]).
Briefly, plaintiff Joseph A. Melino, the president of plaintiff
Calabrese Bakeries, Inc., and defendant Ignazio "Salvatore"
Battaglia, the president of defendant Rockland Bakery, Inc.,
entered into a contract in which they agreed to form plaintiff
B.M. Baking Company, Inc., a corporation that, ostensibly, would
act as the exclusive wholesale and retail distributor of baked
goods provided by Rockland. In 2004, following Melino's
incarceration and alleged misconduct by defendant Clark J. Seely,
the individual who apparently managed B.M. Baking during Melino's
incarceration, B.M. Baking was judicially dissolved.1

      Plaintiffs commenced this action asserting causes of action
for, among other things, breach of contract, breach of fiduciary
duty, conversion and fraudulent inducement. Following joinder of
issue and discovery, Battaglia, Rockland and defendant Rockland
Bakery NY, Inc. (hereinafter collectively referred to as the
Rockland defendants) moved for summary judgment dismissing the
complaint. Seely, along with defendants WTF Bakery, Inc.,
Portside Distributors, Inc., C&C Specialties, Inc. and Joslen
Developers, LLC., moved for similar relief. Supreme Court denied
the motions with respect to the causes of action alleging
fraudulent inducement, breach of contract and conversion, but
otherwise granted the motions and dismissed the remaining causes
of action. Upon the parties' cross appeals, this Court modified
Supreme Court's order to the extent of reinstating plaintiffs'
cause of action for breach of fiduciary duty and, otherwise,
affirmed (102 AD3d at 1037-1038).

      Thereafter, in April 2013, plaintiffs served upon
defendants a supplemental response to defendants' combined
discovery demands consisting of an index of over 13,000 invoices
and, in July 2013, they produced the invoices referenced in the
index. The Rockland defendants moved in limine to, as relevant


     1
        Efforts to vacate or annul the judicial dissolution were
unsuccessful (see Matter of Rockland Bakery, Inc. v B.M. Baking
Co., Inc., 83 AD3d 1080 [2011]; Matter of Calabrese Bakeries,
Inc. v Rockland Bakery, Inc., 83 AD3d 1060 [2011]).
                              -3-                519415

here, preclude the index and those of the invoices that had not
been previously disclosed and, after plaintiffs served a
supplemental expert report that relied, in part, on the newly-
disclosed invoices, they moved to preclude plaintiffs from
introducing, referencing or relying on the supplemental expert
report at trial. Supreme Court granted the motions, prompting
this appeal by plaintiffs.

      As a threshold matter, an order ruling on a motion in
limine is generally not appealable as of right or by permission
"since an order[] made in advance of trial which merely
determined the admissibility of evidence is an unappealable
advisory ruling" (Parker v Mobil Oil Corp., 16 AD3d 648, 650
[2005], affd on other grounds 7 NY3d 434 [2006]; see Lynch v
Carlozzi, 121 AD3d 1308, 1309 [2014]; Bozzetti v Pohlmann, 94
AD3d 1201, 1201 [2012]).   "However, an order that limits the
scope of issues to be tried, affecting the merits of the
controversy or the substantial rights of a party, is appealable"
(Vaughan v Saint Francis Hosp., 29 AD3d 1133, 1135 [2006]; see
Dischiavi v Calli, 125 AD3d 1435, 1436 [2015]; Brown v State of
New York, 250 AD2d 314, 320-321 [1998]). The order appealed from
here, rather than "merely limit[ing] the production of certain
evidence as immaterial to damages," restricted plaintiffs'
ability to prove and recover damages that they allegedly incurred
after the judicial dissolution of B.M. Baking and it is,
therefore, appealable (Scalp & Blade v Advest, Inc., 309 AD2d
219, 224 [2003]; see Franklin Corp. v Prahler, 91 AD3d 49, 54
[2011]).

      Turning to the merits, CPLR 3126 provides that, "[i]f any
party . . . refuses to obey an order for disclosure or wilfully
fails to disclose information which the court finds ought to have
been disclosed . . ., the court may make such orders with regard
to the failure or refusal as are just," including "an order
prohibiting the disobedient party from supporting or opposing
designated claims or defenses [or] from producing in evidence
designated things or items of testimony." "It is within the
trial court's discretion to determine the nature and degree of
the penalty, and the sanction will remain undisturbed unless
there has been a clear abuse of discretion" (Merrill Lynch,
Pierce, Fenner & Smith, Inc. v Global Strat Inc., 22 NY3d 877,
                              -4-                519415

880 [2013] [citations omitted]; see Du Valle v Swan Lake Resort
Hotel, LLC, 26 AD3d 616, 617 [2006]).

      Here, the Rockland defendants' combined discovery demands,
which were served upon plaintiffs in 2006, were sufficiently
broad to encompass the documents that were disclosed by
plaintiffs in 2013. Plaintiffs produced the precluded index and
invoices long after the 2007 court-ordered deadline for document
disclosure and several months after the Rockland defendants filed
and served an expert report. Further, the belatedly-disclosed
documents were available to plaintiffs at the time that they
responded to the Rockland defendants' combined discovery demands
and they failed to offer any compelling reason for their late
disclosure. Accordingly, as these circumstances give rise to the
inference that plaintiffs' late disclosure was willful and the
Rockland defendants would be prejudiced by plaintiffs' use of the
belatedly-disclosed documents, Supreme Court did not abuse its
discretion in precluding plaintiffs from introducing, referencing
or relying on those documents at trial (see Greaves v Burlingame,
12 AD3d 730, 731-732 [2004], lv dismissed and denied 5 NY3d 741
[2005], lv dismissed 5 NY3d 742 [2005]; Osterhoudt v Wal-Mart
Stores, 273 AD2d 673, 674-675 [2000]).

      Plaintiffs further contend that Supreme Court erroneously
precluded their supplemental expert report on the basis that
their recoupment of damages on their breach of fiduciary duty
claim was limited to those incurred prior to the judicial
dissolution of B.M. Baking. In its October 2011 order resolving
defendants' motions for summary judgment, of which we take
judicial notice (see Matter of Hannah U. [Patti U.], 110 AD3d
1258, 1260 n 5 [2013]), Supreme Court dismissed, without
qualification, "the portions of all [of p]laintiffs' claims and
causes of action seeking damages . . . beyond . . . the date of
dissolution." Upon the parties' cross appeals from that order,
this Court upheld Supreme Court's determination with respect to
damages, stating that Supreme Court did not err "in concluding
that plaintiffs' damages, if any, must be limited to those
incurred prior to the . . . dissolution of B.M. Baking" (102 AD3d
at 1035). The limitation on damages was broadly defined by both
Supreme Court and this Court and, in the absence of any
indication that the limitation applied to some causes of action
                                 -5-                519415

and not others, we are unpersuaded by plaintiffs' assertion that
the limitation related to only their breach of contract claim.2
To the extent that plaintiffs' challenge to the limitation on
damages differs from that raised in their prior appeal, they
waived such argument by failing to raise it previously (see
Theophilova v Dentchev, 117 AD3d 531, 533 [2014]; Smith v Smith,
116 AD3d 1139, 1142 [2014]; Czernicki v Lawniczak, 103 AD3d 769,
770 [2013], lv dismissed 21 NY3d 929 [2013]). Accordingly,
inasmuch as the scope of damages was an issue that was raised and
litigated in plaintiffs' prior appeal, plaintiffs are barred by
the doctrine of law of the case from alleging damages past the
date of the judicial dissolution of B.M. Baking, and their
attempt to do so through their supplemental expert report was
improper (see Matter of Murtaugh v New York State Dept. of Envtl.
Conservation, 134 AD3d 1392, 1393-1394 [2015]; Juhasz v Juhasz,
101 AD3d 1690, 1690 [2012]; Moran Enters., Inc. v Hurst, 96 AD3d
914, 916 [2012]). Moreover, Supreme Court's preclusion of
plaintiffs' supplemental expert report at trial, and any reliance
thereon, would have also been warranted under CPLR 3101 (d) (1)
(i), as plaintiffs served the report on defendants well after the
deadline for expert disclosure and roughly six weeks before the
scheduled date of trial (see Dombrowski v Moore, 299 AD2d 949,
950-951 [2002]). Thus, we decline to disturb Supreme Court's
order of preclusion.

         McCarthy, J.P., Garry, Lynch and Devine, JJ., concur.




     2
        Notably, in rendering its oral decision on the Rockland
defendants' motion to preclude plaintiffs from using the
supplemental expert report at trial, Supreme Court stated that
the damages limitation that it had in its October 2011 order
applied to "all causes of action."
                        -6-                  519415

ORDERED that the order is affirmed, with costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
