State Court Motion in Limine - New York

[MOVING PARTY]'S MOTION IN LIMINE

(State of New York — Supreme Court, County of [________________])

TABLE OF CONTENTS

1. Caption
2. Notice of Motion
3. Affirmation in Support
4. Memorandum of Law (Legal Standard and Argument)
5. Relief Requested (Instruction to Counsel and Witnesses)
6. Conclusion
7. Proposed Order
8. Affirmation of Service

1. CAPTION

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF [________________]

Index No.: [________________]
Motion Seq. No.: [________________]
Assigned Justice: Hon. [________________]
Part: [________________] — Room [________________]
Trial Date: [________________]

2. NOTICE OF MOTION

TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD

PLEASE TAKE NOTICE that upon the accompanying (i) Affirmation of [Attorney Name] dated [Date], (ii) Memorandum of Law, and (iii) all prior pleadings and proceedings herein, the undersigned will move this Court at IAS Part [Part], Room [Room], of the Courthouse located at [Address], on [Return Date] at [Return Time], or as soon thereafter as counsel may be heard, for an Order in limine:

1. Precluding [opposing party], its counsel, and its witnesses from offering, eliciting, mentioning, or referring to the categories of evidence and argument described herein; and
2. Granting such other and further relief as the Court deems just and proper.

This Notice of Motion and its supporting papers are served at least sixteen (16) days before the return date and demand the accelerated schedule in N.Y. C.P.L.R. 2214(b): answering affidavits at least seven (7) days before the return date and reply or responding affidavits at least one (1) day before it. A cross-motion must separately comply with C.P.L.R. 2215: seven days before the return date when the demand was properly made, otherwise three days, with the additional time specified there for mail or overnight service. [Moving Party] respectfully requests oral argument.

DATED: [________________], New York
[__/__/____]

[FIRM NAME]
Attorneys for [Moving Party]

By: ______________________________
[ATTORNEY NAME]
[FIRM ADDRESS]
[CITY, STATE ZIP]
[TELEPHONE] | [EMAIL]

3. AFFIRMATION IN SUPPORT

I, [Attorney Name], an attorney duly admitted to practice before the courts of the State of New York, affirm as follows:

1. I am a member of [Firm Name], counsel for [Moving Party] in this action, and am fully familiar with the facts and proceedings herein.
2. I submit this Affirmation in support of [Moving Party]'s Motion in Limine to preclude the evidence and argument described below.
3. Annexed hereto are true and correct copies of [deposition excerpts / discovery responses / expert disclosure / exhibits] referenced in the accompanying Memorandum of Law.
4. No prior application for the relief requested herein has been made.

DATED: [________________], New York
[__/__/____]

I affirm this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, except as to matters alleged on information and belief and as to those matters I believe it to be true, and I understand that this document may be filed in an action or proceeding in a court of law.

______________________________
[ATTORNEY NAME]

4. MEMORANDUM OF LAW (LEGAL STANDARD AND ARGUMENT)

4.1 Legal Standard

Relevance and Unfair Prejudice (Common Law). New York does not have a codified evidence code; admissibility is governed by the common law, and the Guide to New York Evidence is persuasive but not binding. Evidence is relevant if it has "any tendency in reason to prove the existence of any material fact." Even relevant evidence may be excluded where its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or undue delay. See People v. Scarola, 71 N.Y.2d 769 (1988).

Prior Bad Acts and Impeachment (Molineux / Sandoval). Evidence of uncharged crimes or prior bad acts is inadmissible to show propensity but may be admissible for a non-propensity purpose (motive, intent, absence of mistake, common scheme, or identity). People v. Molineux, 168 N.Y. 264 (1901). Cross-examination of a party-witness regarding prior bad acts is subject to a probative-value/prejudice balancing. People v. Sandoval, 34 N.Y.2d 371 (1974).

Hearsay. Out-of-court statements offered for their truth are inadmissible unless a recognized exception applies.

Subsequent Remedial Measures; Settlement; Insurance. Under New York common law, evidence of post-event repairs is generally inadmissible to prove negligence; settlement offers and negotiations are inadmissible to prove liability; and evidence that a party carried liability insurance is inadmissible on the issue of negligence or wrongdoing.

Expert Testimony — Frye General Acceptance. New York remains a Frye jurisdiction. Novel scientific or technical evidence is admissible only if the proponent demonstrates that the underlying principle, procedure, or theory has gained general acceptance in the relevant scientific community. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); People v. Wesley, 83 N.Y.2d 417 (1994). In toxic-tort and causation cases, the expert must also adequately demonstrate causation and a reliable foundation for the opinion. Parker v. Mobil Oil Corp., 7 N.Y.3d 434 (2006). The form of expert opinion is addressed by N.Y. C.P.L.R. 4515.

NEW YORK EXPERT STANDARD FLAG: New York is a Frye ("general acceptance") state — it is NOT a Daubert jurisdiction. Novel scientific evidence requires a showing of general acceptance in the relevant community (People v. Wesley; Parker v. Mobil Oil Corp.). Causation opinions must rest on a reliable foundation. Because New York has no codified evidence code, cite the controlling common-law cases (and, as persuasive authority, the Guide to New York Evidence). Verify the current state of New York law before filing.

Golden Rule / Appeals to Sympathy. Argument inviting jurors to place themselves in a party's position or to decide on sympathy, passion, or prejudice rather than the evidence is improper and should be precluded.

4.2 Argument — Grounds for Exclusion

Ground 1 — Irrelevant and Unfairly Prejudicial Evidence. [Moving Party] moves to preclude [describe evidence] because it is irrelevant and, even if marginally relevant, its probative value is substantially outweighed by the danger of unfair prejudice and confusion.

Ground 2 — Prior Bad Acts and Impeachment (Molineux / Sandoval). The Court should preclude [describe other-acts evidence] offered to show propensity, and limit any Sandoval cross-examination of [witness] to matters whose probative value outweighs the prejudice.

Ground 3 — Inadmissible Hearsay. [Describe statement/document] is an out-of-court statement offered for its truth and falls within no exception; it should be excluded.

Ground 4 — Subsequent Remedial Measures. Evidence that [party] [repaired / modified / warned / changed policy] after the events at issue is inadmissible to prove negligence and should be precluded.

Ground 5 — Settlement Communications and Liability Insurance. Any reference to settlement offers, negotiations, or the existence or absence of liability insurance must be excluded.

Ground 6 — Expert Testimony Failing Frye (and Parker). [Opposing expert]'s opinion that [describe opinion] should be precluded because the methodology is not generally accepted in the relevant scientific community under Frye and Wesley, and [in a causation case] fails to demonstrate causation on a reliable foundation under Parker v. Mobil Oil Corp. [Moving Party] respectfully requests a Frye hearing.

Ground 7 — Golden-Rule and Sympathy Argument. The Court should preclude any "golden rule" argument or appeal to jury sympathy, passion, or prejudice.

Ground 8 — [Additional Ground]. [Describe additional evidence and the authority requiring its exclusion.]

5. RELIEF REQUESTED (INSTRUCTION TO COUNSEL AND WITNESSES)

[Moving Party] respectfully requests that the Court enter an Order:

1. Precluding the categories of evidence, testimony, and argument identified above;
2. Directing all counsel to refrain from mentioning, referring to, or attempting to elicit the precluded matters in the presence of the jury — including during jury selection, opening statement, examination of witnesses, and summation;
3. Directing counsel to admonish their witnesses, before they testify, not to volunteer or refer to any precluded matter;
4. Requiring that, before any party offers, mentions, or seeks to introduce any precluded matter, counsel first apply to the Court at sidebar outside the presence of the jury; and
5. Granting such other and further relief as the Court deems just and proper.

6. CONCLUSION

For the foregoing reasons, [Moving Party] respectfully requests that the Court grant this Motion in Limine in its entirety.

DATED: [________________], New York
[__/__/____]

[FIRM NAME]

By: ______________________________
[ATTORNEY NAME]
Attorneys for [Moving Party]

7. PROPOSED ORDER

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF [________________]

Index No.: [________________]

ORDER GRANTING MOTION IN LIMINE

Upon the foregoing papers, and after due deliberation, it is hereby

ORDERED that [Moving Party]'s Motion in Limine is GRANTED; and it is further

ORDERED that [opposing party], its counsel, and its witnesses are precluded from offering, eliciting, mentioning, or referring at trial to the following: [list precluded matters]; and it is further

ORDERED that counsel shall admonish their witnesses to comply with this Order, and no party shall offer or reference any precluded matter without first applying to the Court at sidebar outside the presence of the jury.

ENTER:
DATED: _________________, 20______

______________________________
J.S.C.

8. AFFIRMATION OF SERVICE

I, [Name], state that on [__/__/____] I served a true copy of the foregoing Motion in Limine, supporting Affirmation, Memorandum of Law, and proposed Order upon all counsel of record by:

☐ NYSCEF electronic filing ☐ Email ☐ Overnight courier ☐ First-class mail

to:

[Opposing Counsel Name]
[Firm Name]
[Address]
[City, State ZIP]
[Email]

Service was effected in accordance with N.Y. C.P.L.R. 2103(b).

I affirm this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, except as to matters alleged on information and belief and as to those matters I believe it to be true, and I understand that this document may be filed in an action or proceeding in a court of law.

______________________________
[NAME]

Sources and References

• Guide to New York Evidence (N.Y. Unified Court System) — persuasive authority: https://www.nycourts.gov/judges/evidence/
• People v. Molineux, 168 N.Y. 264 (1901)
• People v. Sandoval, 34 N.Y.2d 371 (1974)
• People v. Scarola, 71 N.Y.2d 769 (1988) (relevance / prejudice balancing)
• People v. Wesley, 83 N.Y.2d 417 (1994) (Frye in New York)
• Parker v. Mobil Oil Corp., 7 N.Y.3d 434 (2006) (toxic-tort causation): https://law.justia.com/cases/new-york/court-of-appeals/2006/
• N.Y. C.P.L.R. 4515 (Form of Expert Opinion) and 2214 (Motion Papers): https://www.nysenate.gov/legislation/laws/CVP