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]

Attach to the end of the computer-prepared supporting affirmation:

Counsel's word-count certification — supporting affirmation

I certify that the supporting affirmation contains [____] words, excluding the caption and signature block, and complies with the applicable limit in 22 NYCRR 202.8-b or the Court's authorized limit of [____] words.

DATED: [__/__/____] ______________________________ [ATTORNEY NAME], counsel for [Moving Party]

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 outweighed by undue prejudice, confusion of the issues, misleading the jury, or unreasonable delay. Guide to New York Evidence 4.06; see People v. Scarola, 71 N.Y.2d 769 (1988).

Prior Acts and Conviction Impeachment. Identify the specific act, the offered purpose, and the controlling civil authority before seeking exclusion. For a witness's criminal conviction, CPLR 4513 permits proof by cross-examination or the conviction record to affect the weight of testimony.

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; CPLR § 4547 excludes compromise evidence offered to prove liability, invalidity, or the amount of a disputed claim, but permits another purpose such as witness bias or undue delay. The court's Guide to New York Evidence 4.15 treats insurance evidence as inadmissible to prove negligence, wrongdoing, strict liability, or damages, while recognizing other relevant purposes such as agency, ownership, control, or witness bias.

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 outweighed by the danger of undue prejudice and confusion.

Ground 2 — Prior Acts and Conviction Impeachment. The Court should preclude [describe other-acts evidence] because [state the improper purpose and controlling civil authority]. If a criminal conviction is offered to impeach [witness], apply CPLR 4513 to the supported conviction evidence and state any separate ground for limiting its use.

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. The Court should preclude [identify particular evidence] if offered to prove liability, invalidity, or the amount of a disputed claim under CPLR § 4547, or to use insurance to prove negligence, wrongdoing, strict liability, or damages. This request does not reach evidence offered for a proper other purpose, such as witness bias, agency, ownership, control, or undue delay; require an offer of proof and a limiting instruction if that issue arises.

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]

Attach to the end of the computer-prepared memorandum of law:

Counsel's word-count certification — memorandum of law

I certify that this memorandum contains [____] words, excluding the caption, table of contents, table of authorities, and signature block, and complies with the applicable 7,000-word limit in 22 NYCRR 202.8-b(a), or the Court's authorized limit of [____] words.

DATED: [__/__/____] ______________________________ [ATTORNEY NAME], counsel 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)
• CPLR 4513 (conviction impeachment): https://legislation.nysenate.gov/pdf/laws/CVP4513
• 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
• 22 NYCRR 202.8-b (motion-paper length and counsel certification): https://www.nycourts.gov/rules/part-202-uniform-civil-rules-supreme-court-and-county-court