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MOTION IN LIMINE CANNOT BE USED TO DETERMINE AN ISSUE OF MATERIAL FACT, THE MOTION WAS ACTUALLY AN UNTIMELY MOTION FOR SUMMARY JUDGMENT AND SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the motion in limine was actually a motion for summary judgment and was therefore untimely and should not have been granted. Plaintiff was injured when he slipped on debris at a construction site and sued under Labor Law 241 (6) and negligence. Summary judgment motions had been adjudicated. Four years later before starting a bench trial the defendants purported to make a motion in limine and the court dismissed the action with prejudice:

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The trial court found that the motion court’s [prior] order held that [defendant]”(1) did not have sufficient notice of; and (2) did not cause or create the debris condition that resulted in plaintiff[‘s] … accident” and dismissed the complaint because “plaintiffs place the alleged violation of the Industrial Code squarely only on and with defendant … .”

The trial court erred in granting defendants’ motion in limine because, as defendants’ acknowledge in their brief, it was one for summary judgment. As such, it was untimely as it was brought more than 120 days from the filing of the note of issue (CPLR 3212[a]). Further, 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” … . Casalini v Alexander Wolf & Son, 2018 NY Slip Op 00246, First Dept 1-16-18

CIVIL PROCEDURE (MOTION IN LIMINE CANNOT BE USED TO DETERMINE AN ISSUE OF MATERIAL FACT, THE MOTION WAS ACTUALLY AN UNTIMELY MOTION FOR SUMMARY JUDGMENT AND SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/MOTION IN LIMINE (CIVIL PROCEDURE, MOTION IN LIMINE CANNOT BE USED TO DETERMINE AN ISSUE OF MATERIAL FACT, THE MOTION WAS ACTUALLY AN UNTIMELY MOTION FOR SUMMARY JUDGMENT AND SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/CPLR 3212 (MOTION IN LIMINE CANNOT BE USED TO DETERMINE AN ISSUE OF MATERIAL FACT, THE MOTION WAS ACTUALLY AN UNTIMELY MOTION FOR SUMMARY JUDGMENT AND SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))

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PSYCHIATRIC CENTER DID NOT PRESENT SUFFICIENT EVIDENCE TO JUSTIFY CONTINUED RETENTION OF RESPONDENT.
IT WAS NOT CLEAR FROM THE RECORD WHETHER THE JUDGE IMPROPERLY DEEMED YOUTHFUL OFFENDER STATUS TO HAVE BEEN WAIVED BY THE PLEA, OR WHETHER THE JUDGE REJECTED YOUTHFUL OFFENDER STATUS AFTER CONSIDERING IT AS REQUIRED; MATTER REMITTED (FIRST DEPT).
ALTHOUGH THE CONTRACT WAS NEVER SIGNED, IT IS CLEAR THE PARTIES INTENDED TO BE BOUND BY IT (FIRST DEPT)
CHARACTER IN A MOVIE BASED UPON A SHORT STORY WAS IDENTIFIABLE AS PLAINTIFF, THE COMPLAINT STATED CAUSES OF ACTION FOR DEFAMATION AGAINST THE MAKERS OF THE MOVIE (FIRST DEPT).
ALTHOUGH INDIVIDUAL DEFENDANTS, OFFICERS OR EMPLOYEES OF DEFENDANT CORPORATION, DID NOT SIGN THE AGREEMENT IN THEIR INDIVIDUAL CAPACITIES, THEY ARE ENTITLED TO ENFORCE THE ARBITRATION PROVISION OF THE AGREEMENT (FIRST DEPT).
CITY DEMONSTRATED IT DID NOT CREATE, EXACERBATE OR HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE BLACK ICE IN THE CROSSWALK WHERE PLAINTIFF SLIPPED AND FELL, DECISION ILLUSTRATES THE LEVEL OF PROOF REQUIRED OF A SLIP AND FALL DEFENDANT TO WIN SUMMARY JUDGMENT (FIRST DEPT).
A NOTICE OF LIEN CAN NOT BE DISCHARGED ABSENT A TRIAL IF IT IS VALID ON ITS FACE (FIRST DEPT).

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