Adelaide Productions, Inc. v. BKN International AG

Appeal from order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered April 26, 2006, insofar as it denied defendants’ cross motion to strike certain evidence offered by plaintiffs in support of summary judgment, unanimously dismissed as academic, with costs in favor of plaintiffs.

The denial of plaintiffs’ motion for summary judgment renders the issue defendants raise on appeal, of whether certain evidence was properly adduced in support of the summary judgment motion, academic. There is no appeal before us respecting the determination of the summary judgment motion and, accordingly, any view expressed as to the propriety of using the evidence on the motion would be purely advisory. Whether the subject evidence is admissible at trial, a question involving issues not presented in the context of determining admissibility for summary judgment purposes (see State of New York v Metz, 241 AD2d 192, 199 [1998]), has not yet been litigated and is not properly before us. Defendants, of course, may by appropriate motion challenge the trial admissibility of the subject evidence. Concur—Friedman, J.P., Marlow, Williams, Buckley and McGuire, JJ.