Motions in Limine and Motions to Exclude Persons From Trial

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 375-404

CHAPTER 13

Motions in Limine and

Motions to Exclude Persons

From Trial

§13:01 New York Trial Notebook 13-2

I. MOTIONS IN LIMINE

A. GENERAL POINTS

§13:01 Purpose

A motion in limine (literally “at the threshold”)

is a preemptive motion, usually seeking an order

from the court to prevent the jury from observing

evidence or conduct or hearing testimony that is

improper and prejudicial. The philosophy behind

such motions is that the jurors should never be

exposed to the forbidden material, and that if they

are, curative measures such as striking testimony

and instructions to disregard would be insufficient

to overcome the prejudice to the moving party,

and might even require a mistrial. “Generally, the

function of a motion in limine is to permit a party

to obtain a preliminary order before or during

trial excluding the introduction of anticipated

inadmissible, immaterial, or prejudicial evidence

or limiting its use. Its purpose is to prevent the

introduction of such evidence to the trier of fact,

in most instances a jury. [State v. Metz, 241 AD2d

192, 198, 671 NYS2d 79, 83 (1st Dept 1998).]

Motions in limine may also request the trial

court to allow something that you desire, e.g., allow

your expert to be present during other witnesses’

testimony. [See People v. Santana, 80 NY2d 92,

100, 205, 587 NYS2d 570, 574 (1992); §13:42.]

Some trial courts have rules requiring motions

in limine. In Mendola v. Richmond OB/GYN

Associates, 191 Misc2d 699, 744 NYS2d 637

(Sup Ct Richmond County 2002), Supreme Court

rejected as tardy defendant’s motion to preclude

testimony of certain doctors on the ground that

plaintiff ha d never furnished those doctors’ reports

in accordance with 22 NYCRR 202.17. The Court

noted that “[t]he rules of this court, which were

provided to, and discussed with, counsel prior to

the start of trial, clearly inform the parties, inter

alia, that: ‘Any potential evidentiary question or

procedural or substantive law matter not previously

adjudicated shall be brought to the Court’s attention

and addressed prior to trial by way of a written or

oral motion in limine ... . Failure to comply with

these Court Rules shall be addressed appropriately

... .’” Id. at 700, 744 NYS2d at 639. (The Court

also noted that defendant’s counsel had not moved

to compel production of such reports as provided in

22 NYCRR 202.17(j), and could not credibly argue

that they were unaware of noncompliance with

22 NYCRR 202.17 until after the jury had been

selected and trial was well under way. The Court also

found that defendants had been made sufficiently

aware of what the doctors would be testifying about,

and that plaintiff’s failure to produce the reports was

not willful nor calculated to prejudice defendant.

The Court did limit the doctors’ testimony to

matters set forth in plaintiff’s medical and hospital

records, which were in defendant’s possession.)

The modern trend is for trial courts to set dates by

which motions in limine must be made prior to trial.

Judges trying cases in New York County Asbestos

Litigation (NYCAL), where there are typically

multiple defendants and cases consolidated for trial,

have issued elaborate multipage decisions/orders,

e.g., specifying lead counsel to prepare joint letters

not to exceed certain page limits, that individual

defendants with case-specific motions in limine may

file individual letters with strict page limits, and with

similar limitations placed on plaintiffs. Some judges

specify that motions in limine be brought by order

to show cause, implying that while the adverse party

may submit opposition, the moving party may not

submit any reply.

NOTE:

Some motions for pre-trial relief may be

barred because they should have been brought

sooner. [See, e.g, Dupree v. Giugliano, 87

AD3d 975, 978, 929 NYS2d 305, 308 (2d

Dept 2011) (Supreme Court properly denied

defendant’s midtrial application to preclude

evidence of certain special damages, as among

other things, the application was untimely.

Interestingly, the opinion cites Martin v. We’re

Associates, 127 AD2d 568, 511 NYS2d 368 (2d

Dept 1987), which upheld denial of a motion

for preclusion with respect to an allegedly

inadequate bill of particulars on the ground

that no such motion had been made within

ten days as required by then-CPLR 3042(d);

this specific CPLR requirement has since been

deleted, but the court in Dupree evidently felt

that midtrial was far too late to make such a

motion; it also cited as a comparison Bass v.

A & D Service Station, 202 AD2d 464, 610

NYS2d 797 (2d Dept 1994), which upheld the