NYLJ: “Limiting The Unrestricted Motion in Limine” 8/15/11

Uniondale, August 15, 2011 — Donald Jay Schwartz and Danielle B. Gatto have published an article in the latest issue of the New York Law Journal. The article is titled, “Limiting The Unrestricted Motion in Limine”

A motion in limine is a tactical consideration that every litigator should know about and prepare for, particularly because there are no statutory or uniform rules that set forth when such a motion must be made, how such a motion must be made or any notice required for making such a motion, as there are with more common motions, including those for summary judgment under CPLR 3212 or for a motion to dismiss under CPLR 3211.  Rather, these motions, and the applicable rules surrounding such motions, are court-created and depend on the specific judge or part.

Generally, these motions can be brought prior to and during trials in order to obtain a ruling on the admissibility of certain evidence and “exclude the introduction of inadmissible, immaterial, or prejudicial evidence or limiting its use.” State v. Metz, 241 A.D.2d 192, 198, 671 N.Y.S.2d 79 (1st Dep’t 1998); see also Vail v. Kmart Corp., 25 A.D.3d 549, 550, 807 N.Y.S.2d 399 (2d Dep’t 2006) (motion in limine granted and court excluded evidence court held was “not material, is irrelevant, misleading and of no probative value to the jury”); Black’s Law Dictionary 460 (2001) (motion in limine is defined as “[a] pretrial request that certain inadmissible evidence not be referred to or offered at trial.”).   These types of motion are meant to “sav[e] the parties and the court from significant litigation time … [and] significantly streamline the action without compromising either party from proving its case.”  MBIA Ins. Corp. v. Countrywide Home Loans, Inc., 2010 WL 5186702, at *6 (Sup. Ct. Dec. 22, 2010) (citation omitted).

Despite the broad applicability of such motions to the trial setting, there is nothing in the CPLR or Uniform Rules that expressly authorizes motions in limine. In fact, as late as 1966, it appears that New York state courts refused to entertain motions in limine.  Indeed, in Van Guilder v. Town of Fallsburgh, 25 A.D.2d 338, 269 N.Y.S.2d 562 (3d Dep’t 1966), the court stated: “Concededly, there is not statutory authorization for the entertainment of a pretrial motion to suppress evidence in a civil action.” Id. at 339.

Rather, this court-created motion appears to have its route in the Supreme Court case Luce v. United States, 469 U.S. 38 (1984). In Luce, the Supreme Court set forth what a motion in limine was, stating:
“‘In limine’ has been defined as ‘on or at the threshold; at the very beginning; preliminarily.’ We use the term in a broad sense to refer to any motion, whether made before or during trial, to exclude the anticipated prejudicial evidence before the evidence is actually offered.”

Id. at 40 n. 2 (citation omitted). The Supreme Court went on to state:
“Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court’s inherent authority to manage the course of trials.”

Id. at 41 n. 4.

New York courts have continued to rule on such motions, holding that deciding motions in limine “is completed within the court’s inherent power” pursuant to CPLR 4011 to regulate trials before it.  MBIA Ins. Corp. v. Countrywide Home Loans, Inc.,  2010 WL 5186702, at *6 (Sup. Ct. Dec. 22, 2010); see also CPLR 4011 (“court may … regulate the conduct of the trial in order to achieve a speedy and unprejudiced disposition of the matters at issue”); People v. Michael M., 162 Misc.2d 803, 806, 618 N.Y.S.2d 171 (Sup. Ct. 1994)(“The power of a trial court to grant [a motion in limine] is normally not mentioned in procedural rules, but found in the inherent power of a trial court to admit or exclude evidence.” (citations omitted)).

In the course of ruling on such motions, courts have made clear that motions in limine are not subject to the various requisites other motions are subject to.  Rather, motions in limine do not have to be in writing or be made in accordance with CPLR 2214. See Wilkinson v. British Airways, 292 A.D.2d 263, 264, 740 N.Y.S.2d 294 (1st Dep’t 2002).  Additionally, generally no appeal lies from the court’s order denying or granting such a motion. See Swezey v. Montague Rehab & Pain Management, P.C., 921 N.Y.S.2d 864 (2d Dep’t 2011) (denying appeal from the order on motion in limine “because the order concerns evidentiary rulings which, even when made in advance of trial on motion papers, are not appealable, either as of right or by permission”); Angelicola v. Patrick Heating of Mohawk Valley, Inc., 77 A.D.3d 1322, 1323, 907 N.Y.S.2d 892 (4th Dep’t 2010) (same).  Rather, an appeal from such a ruling must ordinarily wait until after the trial is finished. See Rodriguez v. Ford Motor Co., 17 A.D.3d 159, 160, 792 N.Y.S.2d 468 (1st Dep’t 2005); Ferrara v. Kearney, 285 A.D.2d 890, 890, 727 N.Y.S.2d 358 (3d Dep’t 2001).  Thus, your adversary will not be permitted to introduce the evidence at all during the entire trial, a clear tactical advantage.

Moreover, there are neither statewide rules nor regulations restricting the timing of such motions.  Thus, these motions can properly be brought to the trial judge immediately before the jurors come out and without any notice to your adversary.   Additionally, the granting of such motions can frequently be used to completely restrict your adversary’s case on the eve of and even during trial.

Although the courts and the legislature have taken no steps towards requiring such motions be in writing or in accordance with the CPLR like most motions, there appears to be some emphasis by specific judges and courts to have some timing restrictions on bringing a motion in limine.  Indeed, in Drago v. Tishman Construction Corporation of New York, 4 Misc.3d 354, 777 N.Y.S.2d 889 (Sup Ct. 2004), the Honorable Diane A. Leberdeff recognized that “there is an evolving preference for early presentation” of a motion in limine related to the admissibility of testimony about scientific data or opinion.  Id. at 361 (citations omitted).

Individual judges have also set forth rules that restrict when a motion in limine must be made and will deny the motion if it is not made in accordance with the rules.  For example, in Mendola v. Richmond OB/GYN Associates, 191 Misc.2d 699, 744 N.Y.S.2d 637 (Sup. Ct. 2002), the court was faced with an “inexcusably tardy” motion in limine which was not made in accordance with the rules of the Honorable Anthony I. Giacobbe of Supreme Court, Richmond County, who requires that “[a]ny potential evidentiary questions 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. Id. at 700.  In Mendola, “the defendant did not move…until after the jury had been selected and the trial itself was well underway, though certainly there was ample opportunity to do so.” Id.  As a result, the court denied the motion.

Other judges also have established specific time limits for when a motion in limine must be made. See, e.g., Rules of the Supreme Court, Dutchess County (Brand, J.) (30 days before trial); Rules of the Supreme Court, Orange County (Slobod, J.) (15 days before trial); Rules of the Supreme Court, Westchester County (LaCava, J.) (10 days); Rules of the Supreme Court, Westchester County (Loeher, J.; Smith, J.) (1 day).  A number of judges also require that all motions in limine be on notice to the other side, requiring that the motion “be delivered to the Part Clerk and served upon adversary counsel(s) not later than seven (7) days prior to the scheduled date of the trial, except as to issues that cannot be reasonably anticipated prior to trial.” See Supreme Court, Putnam County (O’Rourke, J.); Supreme Court, Rockland County (Smith, J.; Garvey, J.; Kelly, J.; Walsh, J.); Supreme Court, Orange County (Bartlett, J.; McGuirk, J.).  In addition to these restrictions, other judges have required motions in limine be made by the time of the pretrial conference.  See, e.g., Kings County Uniform Civil Term Rules; Rules of the Supreme Court, Kings County (Partnow, J.); Rules of the Justices of the Non-Commercial Division of New York County; Rules of the Supreme Court, Bronx County (Ruiz, J.); Rules of the Supreme Court, Nassau County (Brandveen, J.; Brown, J.; Feinman, J.; Marber, J.); Rules of the Supreme Court, Queens County (Esposito, J.); Rules of the Supreme Court, Richmond County (Panapinto, J.; Silber, J.).

Furthermore the Commercial Division Rules, which are currently applicable only to the branches of the Commercial Division located in Albany, Erie, Kings, Monroe, Nassau, New York, Onondaga, Queens, Suffolk and Westchester counties, provide:
“The parties shall make all motions in limine no later than ten days prior to the scheduled pre-trial conference date, and the motions shall be returnable on the date of the pre-trial conference, unless otherwise directed by the court.”

22 NYCRR 202.70, Rule 27.

The Honorable George D. Marlow of Dutchess County has a particularly expansive and equitable rule on motions in limine.  Judge Marlow requires that any motion in limine “addressing the preclusion of evidence, testimony or other trial related matters shall be brought to the attention of the court immediately upon counsel becoming aware of such matter to be addressed, it being the intent to avoid applications made on the eve of, or during trial of a matter.”  Rules of the Supreme Court, Dutchess County (Marlow, J.) (emphasis added).

Thus, it appears that with the court’s inherent authority to rule on these motions, the courts have also begun exerting their personal preference towards restricting these motions.  Therefore, it is most important that counsel are both complying with specific judge’s rules and are also preparing for the likelihood of being presented with a motion in limine up to, and even during, the trial itself.

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