Motions in Limine and Motions to Exclude Persons From Trial

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 379-410

MOTIONS IN LIMINE,

EXCLUDE PERSONS

FROM TRIAL

CHAPTER 13

MOTIONS IN LIMINE AND

MOTIONS TO EXCLUDE

PERSONS FROM TRIAL

§13:01 New York Trial Notebook 13-2

MOTIONS IN LIMINE,

EXCLUDE PERSONS

FROM TRIAL

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

13-3 Motions in Limine and Motions to Exclude Persons From Trial §13:04

MOTIONS IN LIMINE,

EXCLUDE PERSONS

FROM TRIAL

Dept 1994), which upheld the grant of such a

motion because of “special circumstances.”).]

NOTE:

If a motion styled as a motion in limine

is in reality something else, the consequences

may be drastic. In Ofman v. Ginsberg, 89

AD3d 908, 909, 933 NYS2d 103, 104 (2d

Dept 2011), a legal malpractice action,

after jury selection and opening statements,

defendant moved “in limine” to preclude

plaintiff from adducing any evidence on the

issue of whether a stipulation of settlement

(which plaintiff claimed had been improperly

negotiated by his counsel, now defendant

in the instant case) was intended to act as

a general release. Supreme Court granted

the motion, and then, having precluded all

evidence related to the sole deviation alleged

by plaintiff, directed judgment for defendant.

The Second Department held that the “motion

in limine” was in reality an untimely motion

for summary judgment, and reversed and

reinstated the complaint. Also, in Jones

v. City of New York, 130 AD3d 686, 13

NYS3d 240 (2d Dept 2015), a trip and fall

case, Supreme Court sua sponte directed a

framed-issue hearing on the issue of whether

defendant City had received prior written

notice of the allegedly defective condition, or

whether there was a written acknowledgement

of that condition. At the end of the hearing,

the court determined both in the negative, then

asked defendant’s counsel whether he had

“an application,” and then granted counsel’s

oral application to dismiss. The Second

Department held that Supreme Court erred in

granting the application, which was in effect

an untimely motion for summary judgment.

Under the circumstances of the case, the

Second Department remitted the case for

further proceedings before a different justice.

In Casalini v. Alexander Wolf & Son, 157

AD3d 528, 530, 69 NYS3d 47, 48-49 (1st

Dept 2018), following defendants’ motion

in limine, the trial court dismissed the entire

action. The Second Department reversed,

noting that the motion was in reality for

summary judgment not timely made, and

observed that “an issue of material fact cannot

form the basis for granting a motion in limine

because it is an inappropriate device to obtain

summary relief.”

§13:02 Advantages

• The grant of a motion in limine will prevent

opposing counsel from making damaging

statements at voir dire, in his or her opening

statement, or any time during trial.

• A favorable ruling may place you in a

stronger settlement posture.

• Judges appreciate being given more time

to consider their rulings, rather than having

to react to an oral objection at trial. Judges

prefer to keep cases moving, and a motion

in limine before the jury has been seated

removes a potential annoyance factor. And

if the issue is a close one, the judge may be

more inclined to rule in your favor.

§13:03 Disadvantages

• The motion may alert opposing counsel to

an issue or weakness in your case that he or

she had not previously noticed.

• An adverse ruling may place you in a

weaker settlement posture.

• An adverse ruling is not ordinarily

immediately appealable. [See §13:30.]

§13:04 No Binding Effect

on Retrial After Mistrial

If a case is mistried, rulings on motions in

limine are not binding at the retrial—and may

well be different if the retrial is before a different

judge. In Wahl v. American Honda Motor Co.

[NYLJ April 19, 1999, p. 32, col. 1 (Sup Ct Suffolk

County)], after trial was commenced before one

judge who ruled on eight motions in limine, the

case had to be mistried because of the judge’s

health problems, and was scheduled for retrial

before a different judge. As the rulings were

“advisory” only and not appealable, they were not

binding upon the new judge. NOTE: A decision

and opinion on a different issue in this same case

is reported at 181 Misc2d 396, 693 NYS2d 875

(Sup Ct Suffolk County 1999) (see §15:133). [For

mistrial, see Ch 36.] Interestingly, the judge who