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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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