New York Motions in Limine

Rules, procedure, appellate review

by Edward L. Birnbaum, Carl T. Grasso
& Justice Ariel E. Belen*

New York Civil Practice Before Trial

Excerpted from New York Trial Notebook


A motion in limine (literally “at the threshold”) is a preemptive motion, usually seeking an order from the court to prevent the jury from observing conduct or hearing testimony that is improper and prejudicial. The philosophy behind such motions is that the jurors should never be exposed to the forbidden material, and that if they are, curative measures such as striking testimony and instructions to disregard would be insufficient to overcome the prejudice to the moving party, and might even require a mistrial. “Generally, the function of a motion in limine is to permit a party to obtain a preliminary order before or during trial excluding the introduction of anticipated inadmissible, immaterial, or prejudicial evidence or limiting its use. Its purpose is to prevent the introduction of such evidence to the trier of fact, in most instances a jury. [State v. Metz, 241 AD2d 192, 198, 671 NYS2d 79, 83 (1st Dept 1998).]

Motions in limine may also request the trial court to allow something that you desire, e.g., allow your expert to be present during other witnesses’ testimony. [See People v. Santana, 80 NY2d 92, 100, 205, 587 NYS2d 570, 574 (1992); §13:42.]

Some trial courts have rules requiring motions in limine. In Mendola v. Richmond OB/GYN Associates, 191 Misc2d 699, 744 NYS2d 637 (Sup Ct Richmond County 2002), Supreme Court rejected as tardy defendant’s motion to preclude testimony of certain doctors on the ground that plaintiff had never furnished those doctors’ reports in accordance with 22 NYCRR 202.17. The Court noted that “[t]he rules of this court, which were provided to, and discussed with, counsel prior to the start of trial, clearly inform the parties, inter alia, that: ‘Any potential evidentiary question 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. . . . Failure to comply with these Court Rules shall be addressed appropriately . . .’” Id. at 700, 744 NYS2d at 639. (The Court also noted that defendant’s counsel had not moved to compel production of such reports as provided in 22 NYCRR 202.17(j), and could not credibly argue that they were unaware of noncompliance with 22 NYCRR 202.17 until after the jury had been selected and trial was well under way. The Court also found that defendants had been made sufficiently aware of what the doctors would be testifying about, and that plaintiff’s failure to produce the reports was not wilfull nor calculated to prejudice defendant. The Court did limit the doctors’ testimony to matters set forth in plaintiff’s medical and hospital records, which were in defendant’s possession.)

§13:02     Advantages

  • The grant of a motion in limine will prevent opposing counsel from making damaging statements at voir dire, in his or her opening statement, or any time during trial.

  • A favorable ruling may place you in a stronger settlement posture.

  • Judges appreciate being given more time to consider their rulings, rather than having to react to an oral objection at trial. Judges prefer to keep cases moving, and a motion in limine before the jury has been seated removes a potential annoyance factor. And if the issue is a close one, the judge may be more inclined to rule in your favor.

§13:03     Disadvantages

  • The motion may alert opposing counsel to an issue or weakness in your case that he or she had not previously noticed.

  • An adverse ruling may place you in a weaker settlement posture.

  • An adverse ruling is not ordinarily immediately appealable. [See §13:30.]

§13:04     No Binding Effect on Retrial After Mistrial

If a case is mistried, rulings on motions in limine are not binding at the retrial—and may well be different if the retrial is before a different judge. In Wahl v. American Honda Motor Co. [NYLJ April 19, 1999, p. 32, col. 1 (Sup Ct Suffolk Co)], after trial was commenced before one judge who ruled on eight motions in limine, the case had to be mistried because of the judge’s health problems, and was scheduled for retrial before a different judge. As the rulings were “advisory” only and not appealable, they were not binding upon the new judge. NOTE: A decision and opinion on a different issue in this same case is reported at 181 Misc2d 396, 693 NYS2d 875 (Sup Ct Suffolk County 1999) (see §15:133). [For mistrial, see Ch 36.] Interestingly, the judge who inherited that case held that the previous judge’s rulings on evidentiary motions in limine were not binding on him (citing several Court of Appeals criminal cases), but that the ruling precluding an expert for failure to comply with CPLR 3101(d) was the law of the case, which bound him as the new trial judge.

§13:05     Potential Relief

Motions in limine are usually requests to exclude evidence, although they may be addressed to other concerns as well. Depending on the nature of the motion, relief requested may include:

  • Instructions to refrain from specified conduct.

  • Instructions to refrain from mentioning prohibited material in opening statement.

  • Instructions not to introduce certain evidence in counsel’s direct case.

  • Instructions to refrain from referring to prohibited material on cross-examination.

  • Direction to inform counsel’s witnesses and experts that they must not mention prohibited material.

  • Instructions that prohibited material not be allowed within sight of the jurors.

  • Instructions to refrain from referring to prohibited material in closing argument (this type of relief is often sought if the jurors have already been exposed to the material).

In Ferrara v. Kearney, 285 AD2d 890, 727 NYS2d 358 (3d Dept2001), plaintiff moved in limine seeking admission of expert testimony. This testimony would have addressed two surgical procedures performed by defendant within the same week and similar to the procedure performed on plaintiff, where those patients developed the very same bacterial infection suffered by plaintiff (Supreme Court denied the motion on various grounds).

§13:06     Common Motions to Exclude Evidence

The subject matter of motions in limine is limited only by counsel’s imagination. However, certain types of motions in limine are fairly common, and deserve consideration in many cases. Motions in limine may be made to exclude evidence such as the following:

Expert Testimony

  • Expert opinion testimony by non-experts, e.g., investigating police officers. [Hatton v. Gassler, 219 AD2d 697, 631 NYS2d 757 (2dDept 1995); Murray v. Donlan, 77 AD2d 337, 433 NYS2d 184 (2dDept 1980); seeMeiselman v.CrownHeightsHospital, 285 NY 389, 34 NE2d 367 (1941).]

  • Expert opinion based on unreliable hearsay. [Hambsch v.New York City Transit Authority, 63 NY2d 723, 480 NYS2d 195 (1984).]

  • Expert opinion based on facts not in the record or personally known. [Sawyer v. Dries & Krump Manufacturing Co., 67 NY2d 328, 502 NYS2d 696 (1986); Tucker v. Elimelech, 184 AD2d 636, 584 NYS2d 895 (2dDept 1992); Interstate Cigar Co. Inc. v. Dynaire Corp., 176 AD2d 699, 574 NYS2d 789 (2dDept 1991); Fallon v. Clifford B. Hannay & Son, Inc., 153 AD2d 95, 550 NYS2d 135 (3dDept 1989).]

  • Expert testimony that would be immaterial, irrelevant, misleading and of no probative value. [See Vail v. K Mart Corp., 25 AD3d 549, 550, 807 NYS2d 399, 401 (2d Dept 2006) (infant plaintiff’s shorts outfit caught fire; trial court properly precluded expert from testifying as to whether newsprint would satisfy the Federal Flammable Fabrics Act, also properly precluded testimony regarding a stricter flammability standard for children’s sleepwear, since the subject garment was not sleepwear).]

  • Expert testimony that would be unfairly prejudicial. [See Van Dusen v. McMaster, 28 AD3d 1057, 1058, 814 NYS2d 438, 438 (4th Dept 2006) (judgment for defendant reversed and new trial granted, where on direct examination, the physician who examined plaintiff on behalf of defendants testified, despite a prior ruling of the court barring such testimony, that plaintiff was not injured in the fall, but continued to seek medical treatment in order to obtain prescription drugs to which she was addicted and/or was trafficking).]

Other Complaints or Suits

  • The admission of other complaints or lawsuits on grounds of lack of substantial similarity, hearsay, or waste of time on collateral issues. [Johantgen v. Hobart Manufacturing Co., 64 AD2d 858, 407 NYS2d 355 (4th Dept 1978); Sawyer v. Dreis & Krump Manufacturing Co., 67 NY2d 328, 502 NYS2d 696 (1986) (substantial similarity must be shown); Voss v. Black & Decker Manufacturing Co., 59 NY2d 102, 463 NYS2d 398 (1983) (other lawsuits held inadmissible where no issue of notice to manufacturer; also no proof documents were genuine); Hyde v. County of Rensselaer, 51 NY2d 927, 434 NYS2d 984 (1980).]; Stahl v. Rhee, 220 AD2d 39, 643 NYS2d 148 (2d Dept 1996) (excluded evidence of 36 deaths of children in France due to a product which contained more than twice the amount of the active ingredient in the product in question; and a lawsuit in New Jersey which made similar claims where the New Jersey court had rejected plaintiff’s expert’s opinions as not accepted in the medical community).]

IN PRACTICE: Exclude Other Incidents

Be sure to include in the motion a request for a court order that opposing counsel refrain from cross-examining witnesses about other incidents if counsel is not able to establish that these other incidents were similar to the incident in question.

Demonstrative Evidence

  • Experiments, tests or demonstrations not similar to circumstances of the case. [Glusaskas v. Hutchinson, 148 AD2d 203, 544 NYS2d 323 (1st Dept 1989); People v. Estrada, 109 AD2d 977, 486 NYS2d 794 (3d Dept 1985); Hoover v. Durkee, 212 AD2d 839, 622 NYS2d 348 (3d Dept 1995); Schafer v. Standard Railway Fusee Corp., 200 AD2d 564, 606 NYS2d 332 (2d Dept 1994;but see Uss v. Town of Oyster Bay, 37 NY2d 639, 376 NYS2d 449 (1975) (although model was not substantially similar to original, mechanical principals involved were within jury’s comprehension and opposing party’s interests were adequately protected through cross-examination); Goldner v. Kemper Insurance Co., 152 AD2d 936, 544 NYS2d 396 (4th Dept 1989) (tests did not purport to reflect actual conditions at time of incident).]

Findings of Administrative Bodies

  • Findings of administrative bodies in some circumstances, e.g., when all parties were not present or did not have motivation to thoroughly litigate. [Staatsburg Water Co. v. Staatsburg Fire District, 72 NY2d 147, 531 NYS2d 876 (1988); Ryan v. New York Telephone Co., 62 NY2d 494, 478 NYS2d 823 (1984); in particular, Department of Motor Vehicle hearing results. [Rice v. Massalone, 160 AD2d 861, 554 NYS2d 294 (2dDept 1990); Courtney v. Nuding, 120 Misc2d 148, 465 NYS2d 403 (Sup Ct Saratoga Co 1983).] In Kinsella v. Berley Realty Corp., 240 AD2d 374, 657 NYS2d 771, 772 (2dDept 1997), the trial judge properly excluded a certified report of the New York State Department of Labor since the report would have confused and misled the jury.

Hearsay

  • Content of hearsay conversations. [Griggs v. The Children’s Hospital of Buffalo, Inc. 193 AD2d 1060, 599 NYS2d 197 (4thDept 1993); Dehn v. Kaplan, 131 AD2d 535, 516 NYS2d 480 (2dDept 1987); Pawlewicz v. Pawlewicz, 98 AD2d 912, 471 NYS2d 31 (3dDept 1983).]

  • Reports by investigating authorities containing hearsay, particularly those recorded in witness statements. [Johnson v. Lutz, 253 NY 124, 170 NE 517 (1930); Hatton v. Gassler, 219 AD2d 697, 631 NYS2d 757 (2dDept 1995); Sansevere v. United Parcel Service, Inc., 181 AD2d 521, 581 NYS2d 315 (1stDept 1992); Canty v.New York City Health and Hospitals Corp., 158 AD2d 271, 550 NYS2d 673 (1stDept 1990); Empire Mutual Insurance Co. v. National Union Fire Insurance Co., 156 AD2d 154, 548 NYS2d 202 (1stDept 1989).]

  • Newspaper articles and other published hearsay. [Love v. Spector, 215 AD2d 733, 627 NYS2d 87 (2dDept 1995); Pedro v. Burns, 210 AD2d 782, 620 NYS2d 524 (3dDept 1994); Bakery Salvage Corp. v. Maple Leaf Foods, Inc., 195 AD2d 954, 600 NYS2d 874 (4thDept 1993).]

Irrrelevant or Prejudicial Evidence

  • Entries in medical records not relevant to treatment. [Passino v. DeRosa, 199 AD2d 1017, 606 NYS2d 107 (4thDept 1993); Gunn v. City ofNew York, 104 AD2d 848, 480 NYS2d 365 (2dDept 1984).]

  • Evidence on matters irrelevant to the issues in the case. [See Stahl v. Rhee, 220 AD2d 39, 643 NYS2d 148 (2dDept 1996) (excluded evidence of effects of a product when used in different manners for different purposes than when used in the instant lawsuit).]

  • Evidence on matters already resolved on summary judgment. [See Siewert v.LoudonvilleElementary School, 210 AD2d 568, 620 NYS2d 149 (3dDept 1994).]

  • Prejudicially gruesome photographs. [People v. Wood, 79 NY2d 958, 582 NYS2d 992 (1992); People v. Pobliner, 32 NY2d 356, 345 NYS2d 482 (1973); see Ch 28.]

  • Criminal convictions or personal history if it would unfairly influence the jury. [See Hosmer v. Distler, 150 AD2d 974, 541 NYS2d 650 (trial court quite reasonably found that evidence of decedent’s three prior convictions of driving while intoxicated and history of excessive drinking might unfairly lead jury to conclude decedent was drunk at time of accident); Sansevere v. United Parcel Service, Inc., 181 AD2d 521, 581 NYS2d 315 (1st Dept 1992); Able Cycle Engines V. Allstate Insurance Co., 84 AD2d 140, 445 NYS2d 469 (2d Dept 1981); but see Scotto v. Daddario, 235 AD2d 470, 652 NYS2d 311 (2d Dept 1997) (denial of plaintiff’s motion in limine to preclude evidence of his misdemeanor and felony convictions for DWI for impeachment was not error, notwithstanding that there was an issue with respect to his sobriety at the time of the subject accident).] Note: Evidence of criminal convictions is generally permissible to impeach a witness. [CPLR 4513.]

  • Subsequent remedial measures, repairs or improvements are generally not permitted in negligence actions. [McGarvin v. J.M. Weller Associates, Inc., 273 AD2d 623, 625, 710 NYS2d 143 (3dDept 2000), Wright v. Saeed Deli & Grocery, 275 AD2d 999, 1000, 713 NYS2d 639 (4thDept 2000).]

  • Subsequent design changes in a negligent design products liability case. [Cover v. Cohen, 61 NY2d 261, 473 NYS2d 378 (1984), Rainbow v. Albert Elia Building Co., Inc., 79 AD2d 287, 436 NYS2d 480 (4thDept 1981), affirmed for reasons stated in 4th Dept opinion, 56 NY2d 550, 449 NYS2d 967 (1982).]

NOTE:

Subsequent design changes may be admissible in a strict products liability case involving manufacturing flaws. Caprara v. Chrysler Corp., 52 NY2d 114, 436 NYS2d 251 (1981).

  • Subsequently implemented standards.  [Cover v. Cohen, 61 NY2d 261, 473 NYS2d 378 (1984)].)

  • Subsequently implemented recalls or technical bulletins to prove a product is not reasonably safe. [Cover v. Cohen, 61 NY2d 261, 473 NYS2d 378 (1984).]

NOTE:

Subsequent recalls or technical bulletins may be admissible on a failure to warn theory. Cover v. Cohen, 61 NY2d 261, 473 NYS2d 378 (1984).

  • Recalls of products different from the subject product. [Speed v. Avis Rent-A-Car, 172 AD2d 267, 568 NYS2d 90 (1st Dept 1991) (First Department reversed trial court’s decision to preclude a recall of automobiles manufactured at plant O for a defective power brake booster where the automobile had been manufactured at plant B; the First Department held that as the same make and model of vehicle was involved, admissibility of the recall would be more properly made at trial, when its relevance, or lack thereof, may be determined in context).]

NOTE:

“[E]ven if the evidence is proximately relevant, it may be rejected if its probative value is outweighed by the danger that its admission would prolong the trial to an unreasonable extent without any corresponding advantage; or would confuse the main issue and mislead the jury; or unfairly surprise a party; or create substantial danger of undue prejudice to one of the parties.” People v. Davis, 43 NY2d 17, 27, 400 735, 740 (1977) (quoting Richardsonon Evidence [Prince — 10th ed], §147, p 117

Evidence Excluded by Various Rules

  • Introduction of benefits excludable under the collateral source rule. [Kish v. Board of Education of the City ofNew York, 76 NY2d 379, 559 NYS2d 687 (1990); Healy v. Rennert, 9 NY2d 202, 213 NYS2d 44 (1961).]

  • Evidence excludable under the best evidence rule. [Sirico v. Cotto, 67 Misc2d 636, 324 NYS2d 483 (NYCity CivCt 1971); Trombley v. Seligman, 191 NY 400, 84 NE 280 (1908); see Schozer v. William Penn Life Insurance Co. ofNew York, 84 NY2d 639, 620 NYS2d 797 (1994).]

  • Evidence excludable under the Dead Man’s Statute. [CPLR 4519; Kwoh v. Delum Builders & Suppliers, Inc., 173 AD2d 326, 575 NYS2d 465 (1st Dept 1991); Endervelt v. Slade, 162 Misc2d 975, 618 NYS2d 520 (Sup Ct NYCo 1994); but see Hargrave v. Presher, 221 AD2d 677, 632 NYS2d 886 (3d Dept 1995) (denial of motion to exclude testimony under the Dead Man’s statute not reviewable as ruling’s effect would depend upon state of the record when the evidence is ultimately offered).]

Evidence Precluded for Failure to Provide in Discovery

  • Materials requested or ordered to be produced in discovery that are not produced may be precluded. Depending on the nature of the failure to comply with the court’s order, preclusion may go beyond merely what was not produced. In Getty v. Zimmerman, 37 AD3d 1095, 830 NYS2d 409 (4th Dept 2007), the court had ordered plaintiff to produce authorizations for employment records for three years prior to incident, but plaintiff had only provided authorization for employment records for one year prior. The trial court’s preclusion of all evidence with respect to past or future wage loss was within the court’s discretion; that plaintiff’s conduct was willful and contumacious may be inferred from the failure to comply with the order and her inadequate excuses for that failure.

  • Witnesses required to be identified in discovery may be precluded if inadequate information about them is provided. In Frenk v. Frederick, 38 AD3d 593, 830 NYS2d 672 (2d Dept 2007), the Second Department noted parties’ continuing obligation to provide information as it becomes available [CPLR 3101(h)] and upheld the trial court’s discretionary preclusion of witnesses attempted to be introduced by defendants whose addresses had not been disclosed to plaintiffs. In Crespo v. Metropolitan Transportation Authority, 15 Misc3d 1117A, 839 NYS2d 432 (Sup Ct NY County 2007), on motion, Supreme Court precluded defendant from calling an in-house witness identified and made available for deposition one and a half months before trial. The witness should have been identified earlier in compliance with court-ordered discovery; when the Note of Issue was filed (a year prior to the trial date), both sides had agreed that all discovery had been exchanged; and the witness was not even identified at a “final settlement conference” three months before the trial date.  Supreme Court held that this “constituted ambush and unfair surprise,” and rejected “the only excuse offered by defendant for not identifying the witness in a timely manner … that the defendant has a heavy caseload.” The Court declined to grant the more stringent relief also sought by plaintiff, namely, striking defendant’s answer.

Witness Examination

  • Consistent statements to bolster a witness’s testimony. [Crawford v. Nilan, 289 NY 444, 46 NE2d 512 (1943); Aurnou v. Craig, 184 AD2d 1048, 584 NYS2d 249 (4thDept 1992).]

  • Evidence of enhanced recollections. [Bennett v. Saeger Hotels, Inc., 209 AD2d 946, 619 NYS2d 424 (4thDept 1994); People v. Schreiner, 77 NY2d 733, 570 NYS2d 464 (1991); People v. Hughes, 59 NYS2d 523, 466 NYS2d 255 (1983).]

§13:07     Other Common Motions in Limine

Other types of motions in limine not strictly directed to exclusion of evidence may address:

Expert testimony

  • Precluding testimony of an expert who was untimely or improperly identified. [Bauernfeind v.AlbanyMedicalCenterHospital, 195 AD2d 819, 600 NYS2d 516 (3dDept 1993).]

  • Limiting the scope of an expert witness’s testimony. [Hong v. County of Nassau, 139 AD2d 566, 527 NYS2d 66 (2dDept 1988); seeMeiselman v.CrownHeightsHospital, 285 NY 389, 34 NE2d 367 (1941).]

  • Requiring an expert to demonstrate that his or her opinions meet the “Frye” test. [Frye v. United States, 293 F 1013 (DC Cir 1923)], that scientific evidence is recognized as generally accepted in the scientific community. [People v. Wesley, 83 NY2d 417, 611 NYS2d 97 (1994); People v. White, 211 AD2d 982, 621 NYS2d 728 (3d Dept 1995); People v. Kanani, 272 AD2d 186, 709 NYS2d 505 (1st Dept 2000); Oppenheim v. United Charities of New York, 266 AD2d 116, 698 NYS2d 144 (1st Dept 1999) (IAS court properly precluded expert without a hearing where plaintiff failed to raise an issue of fact as to whether expert’s position had gained general acceptance in the scientific community); Castrichini v. Rivera, 175 Misc2d 530, 669 NYS2d 140 (Sup Ct Monroe Co 1997); Rodriguez v. Ford Motor Co., 17 AD3d 159, 792 NYS2d 468 (1st Dept 2005) (expert’s theory of a “transient signal” causing a car to suddenly accelerate had never been examined, let alone accepted, by the scientific community); see Ch 15.]

  • Challenging expert scientific testimony based on the Daubert factors pertaining to its reliability [Daubert v. Merrell Dow Pharmacuticals, Inc. 509 US 579, 113 SCt 2786 (1993); seeGiangrasso v. Association for the Help of Retarded Children, 2001 NY Slip Op 40073U, 2001 NYMisc. LEXIS 472 (Sup Ct Suffolk Co 2001); Rodriguez v. Ford Motor Co., 17 AD3d 159, 792 NYS2d 468 (1st Dept 2005) (expert’s theory of a “transient signal” causing a car to suddenly accelerate had never been examined, let alone accepted, by the scientific community); see Ch 15.]

  • Moving to hold expert testimony admissible. [Ferrara v. Kearney, 285 AD2d 890, 727 NYS2d 358 (3d Dept 2001) (plaintiff moved in limine seeking admission of expert testimony which would have addressed two surgical procedures performed by defendant within the same week and similar to the procedure performed on plaintiff, where those patients developed the very same bacterial infectio n suffered by plaintiff (Supreme Court denied the motion on various grounds).]

Other

  • Reference to missing witnesses not in a party’s control. [Hayden v. New York Railways Co., 233 NY 34, 124 NE 826 (1922); Klombers v. Lefkowitz, 131 AD2d 815, 517 NYS2d 179 (2dDept 1987).]

  • Anticipated improper use of depositions. [Sansevere v. United Parcel Service, Inc., 181 AD2d 521, 581 NYS2d 315 (1st Dept 1992); Wilkinson v. British Airways, 292 AD2d 263, 740 NYS2d 294 (1st Dept 2002) (prohibited videotaped deposition taken in the United Kingdom where counsel for plaintiffs administered the oath after being cautioned by defendant’s counsel; the Court then dismissed the complaint for failure to make a prima facie case. Although the deposition was properly excluded, the Appellate Division ordered the complaint reinstated and permitted plaintiffs a final opportunity to conduct a proper deposition).]

  • Which party bears the burden of proof. [See Endervelt v. Slade, 162 Misc2d 975, 618 NYS2d 520 (Sup Ct NY Co 1994).]

  • Exclude persons from the courtroom [see §13:40 ff].

§13:08     Motion Concerning High-Low Agreements

In Matter of Eighth Judicial District Asbestos Litigation, 8 NY3d 717, 840 NYS2d 546 (2007), the Court of Appeals held that in multi-defendant litigation, high-low agreements, including their terms, must be disclosed not only to the trial court, but to non-agreeing defendants. The decision also holds that the trial court may in its discretion disclose the agreement to the jury. Accordingly, it would behoove parties considering such an agreement to move in limine to determine whether and to what extent the jury would be informed. Depending on the ruling, the parties might or might not decide to go ahead with the agreement. Logically, if the fact of the agreement should not be admissible for any evidentiary purpose, it ought not to be disclosed to the jury. It is not admissible on the issue of liability, as per CPLR 4547 [see §2:65, 22:52], but it may, depending on the facts of the case, be admissible for some other purpose, such as demonstrating a witness’s bias [see §2:65].

[§§13:09–13:19 Reserved]

B.  Procedure

§13:20     Timing

Motions in limine should be made before the trial starts, particularly if you wish to preclude your adversary from talking about the object of the motion in voir dire or opening statement. Motions in limine, however, can be made at any time if circumstances develop during trial that could not have been foreseen beforehand, as well as if counsel simply did not think to do so before the trial.

In particular, counsel should consider making a motion in limine requesting a Frye determination well in advance of trial. As the court observed in Drago v. Tishman Construction Co., 4 Misc3d 354, 361, 777 NYS2d 889, 894-895 (Sup Ct New York County 2004), “there is an evolving preference for early presentation because scientific issues may involve a time-consuming analysis of an expert’s methodology and the pertinent literature (cites omitted).” In Gallegos v. Elite Model Management Corp., 195 Misc2d 223, 226, 758 NYS2d 777, 779 (Sup Ct New York County 2003), reversed on other grounds 28 AD3d 50, 807 NYS2d 44 (1st Dept 2005), the Court noted that “the traditional approach in Frye hearing cases is to hold an in limine hearing at the start of the trial or sometimes even during the trial. That is a far less productive way of proceeding and is a waste of the jury’s time as it sits and waits while the hearing hurries along and the judge’s equally hurried decision is made without sufficient time to study and reflect.”

In fact, if aFrye motion is delayed until after trial is imminent or under way, the Court may be displeased. In Guscott v. Lott Port Development Association LP, 8 Misc3d 1003A, NYLJ (June 24, 2005, p. 19, col. 1) (Sup Ct Kings County 2005), the Court said the following:

This Court is gravely concerned that defendants’ counsel waited until the case was sent to trial to move to preclude any opinions expressed by plaintiff’s experts . . . The Court hopes that this is not indicative of any propensity of defendants’ counsel to engage in trial by ambush. . . . To serve this motion on the trial judge and opposing counsel, with a jury already picked, shows no respect for jurors who expect this case to go to immediate trial. [The Court proceeded to consider the Frye motion, and granted it in part and denied it in part.]

In some instances, a trial court should defer ruling until trial evidence has been developed. In Speed v. Avis Rent-A-Car, 172 AD2d 267, 267, 568 NYS2d 90, 90-91 (1st Dept 1991), the First Department reversed the trial court’s decision on defendant’s motion in limine to preclude a recall of automobiles manufactured at plant O for a defective power brake booster where the automobile had been manufactured at plant B “unless plaintiff provided defendants with 30 days notice prior to trial of evidence establishing that the actual vehicle involved herein would have been subject to the recall.” The First Department held that as the same make and model of vehicle was involved, admissibility of the recall would be “more properly made at trial when its relevance, or lack of relevance, may be determined in context,” so “the court was premature in ruling upon its admissibility at this point in the action.” Id. at 267, 568 NYS2d at 91.

§13:21     Based on Opening Statement

If the other side makes a statement in voir dire or opening that cues you to something you feel is improper, consider moving in limine to preclude the other side from introducing evidence to back up what was suggested in the opening. Obviously, it is better to anticipate the statement and move in limine earlier, but later is sometimes better than never. Be warned, however. Not only has the jury already heard the improper material; the judge will be fully cognizant of your adversary’s dilemma in being unable to fulfill a promise made in opening. Thus, the court may rule against you, particularly if the court feels that you should have moved in limine earlier so as to avoid the problem. Of course, if the statement by your opponent was so blatantly improper that you should not have had to anticipate it, move to strike the statement and if appropriate, for a mistrial. See Ch 36.

§13:22     How to Make the Motion

There is no requirement that a motion in limine be made in writing or in accordance with CPLR 2214 (governing motion papers, service and timing). [Wilkinson v. British Airways, 292 AD2d 263, 740 NYS2d 294 (1st Dept2002).] However, a motion in writing may receive more consideration. Particularly if the issue is not clear cut, the court will appreciate the opportunity to review applicable authority, rather than having to render a decision on the fly to avoid delaying the trial. If you make the motion orally, ask to have a court reporter present. Ask that any discussion on the motion, even informal conferences in the judge’s chambers, be recorded. If at all possible, present the court with a short memorandum of law, and copies of statutes and relevant cases. (For this reason, it is often a good idea to have memoranda of law on potential issues prepared before trial, if the issues present themselves). If you make the motion in writing, serve your opponent with copies of the motion and supporting papers. Whether you make the motion in writing or orally, the judge will give your adversary an opportunity to respond. Be sure to have your papers, and your adversary’s opposing papers, if any, marked for identification as a court exhibit, and thus made part of the record.

§13:23     Responding to Court’s Ruling

When confronted with a motion in limine, a judge may grant, deny, reserve ruling, or suggest the motion be revisited at a particular point in the trial, e.g., when a certain witness is on the stand, or some evidence is about to be offered.

  • If your motion is denied, be prepared to renew or seek to reargue the motion at the appropriate time. Be sure to offer new matter or arguments for the judge to consider; point out how the progression at trial thus far has failed to justify the evidence’s admission, how the evidence would be unduly prejudicial or cumulative in light of evidence received thus far, etc. Simply offering the same argument makes it easy for the judge to decline to revisit the issue.

  • If your motion is granted, be prepared to defend the judge’s decision if your opponent tries to revisit the issue; if he or she offers no new argument, underscore that to the judge.

  • If your motion to exclude evidence is denied, be sure to note an objection when the evidence is offered and state your reasons, based upon what has transpired at trial. Merely moving in limine before trial does not necessarily preserve the objection for appeal. The ruling on an in limine motion is merely “advisory,” particularly if the effect of the ruling in question is contingent upon the state of the record when the evidence is offered. [Hargrave v. Presher, 221 AD2d 677, 632 NYS2d 886 (3dDept 1995).]

  • If the judge made a conditional order pertaining to whether you may offer certain evidence, for example, an order that requires a certain type of foundation, ask for a sidebar conference to determine whether the judge agrees that the condition has been fulfilled. To simply go ahead and offer the evidence in front of the jury risks a mistrial if the judge finds that you have not met the condition.

  • If the judge reserved decision, remind her of the need for a ruling before actually reaching that point in the trial, to avoid having to bring proceedings to a halt. In a protracted trial, remind the judge at least the day before you expect to offer the evidence, or you expect the other side to offer the evidence.

[§§13:24–13:29 Reserved]

C.  Appellate Review

§13:30     Not Ordinarily Reviewable

Orders on motions in limine excluding evidence are not ordinarily immediately reviewable. Until the trial is over and the outcome is known, they cannot be said to have involved the merits or affected a substantial right. [See §13:31.] Since the effect of the ruling is contingent on the state of the record when the material in question is offered into evidence at trial, appellate review should be deferred until after the trial, when the propriety of the challenged ruling can be assessed, not speculatively, but in the context of its application to a concrete factual controversy. An order made in advance of trial merely delineating admissibility of evidence is at best “an advisory opinion that is neither appealable as of right or by permission.” [Hargrave v. Presher, 221 AD2d 677, 678, 632 NYS2d 886, 887 (3d Dept 1995); quoting Savarese v. New York City Housing Authority, 172 AD2d 506, 509, 567 NYS2d 855, 857 (2d Dept 1991).] Similarly, Rondout Electric, Inc. v. Dover Union Free School District, 304 AD2d 808, 758 NYS2d 394 (2d Dept 2003), Citlak v. Nassau County Medical Center, 37 AD3d 640, 828 NYS2d 912 (2d Dept 2007) (order precluding plaintiff’s experts from offering certain testimony at trial was not immediately appealable). As a practical matter, a motion granting exclusion of evidence could become moot if developments at trial make the evidence admissible, e.g., if the other side “opens the door.”

CASE EXAMPLES:

  • Farmer v. Nostrand Avenue Meat and Poultry, 289 AD2d439, 735 NYS2d 425 (2dDept 2001) (grant of motion in limine precluding plaintiff from reading any portion of the deposition of plaintiff’s decedent was not appealable).

  • Ferrara v. Kearney, 285 AD2d 890, 727 NYS2d 358 (3d Dept 2001) (in medical malpractice action, denial of plaintiff’s motion in limine seeking admission of two similar surgical procedures performed by defendant the same week as plaintiff’s procedure was evidentiary and not appealable; appellate review should be deferred until after the trial).

  • Chateau Rive Corp. v. Enclave Development Associates, 283 AD2d 537, 725 NYS2d 215 (2dDept 2001) (grant of defendant’s motion in limine to preclude introduction of evidence of lost profits was evidentiary, neither appealable as of right nor by permission).

  • Hough v. Hicks, 160 AD2d 1114, 554 NYS2d 340 (3dDept 1990) (no appeal from order denying motion to exclude evidence of failure to use seat belts).

  • Pellegrino v. New York City Transit Authority, 141 AD2d 709, 529 NYS2d 1004 (2dDept 1988) (order limiting evidence of a settlement in trial of indemnity action not appealable).

  • Herring v. Lighthouse 2001, LLC, 21 AD3d 449, 452, 799 NYS2d 825, 827 (2d Dept 2005) (order denying defendant’s motion to preclude plaintiff’s experts from testifying or, in the alternative, to subject them to aFrye hearing, was in effect an evidentiary ruling, “at best, ‘an advisory opinion, which is neither appealable as of right nor by permission.’”

  • Mauro v. Village ofFreeport, 113 AD2d 876, 493 NYS2d 797 (2dDept 1986) (no appeal from order limiting proof to be admitted at trial on damages).

§13:31     When Reviewable

Interlocutory appeals can be taken to the appellate division as of right under specified circumstances. If the order on a pretrial motion “involves some part of the merits” [CPLR 5701(a)(2)(iv)] or “affects a substantial right.” [CPLR 5701(a)(2)(v)], an immediate appeal may lie.

“An order which limits the scope of issues to be tried is appealable.” [Rondout Electric, Inc. v. Dover Union Free School District, 304 AD2d 808, 810, 758 NYS2d 394, 397 (2d Dept 2003) (motion to limit recovery to the amount in the original Notice of Claim, although styled a motion in limine, was the functional equivalent of a motion for partial summary judgment, and thus was appealable); similarly, Hargrave v. Presler, 221 AD2d 677, 632 NYS2d 886 (3d Dept 1995); citing Siewert v. Loudonville Elementary School, 210 AD2d 518, 620 NYS2d 149 (3d Dept 1994).] For example, in Siewert, a playground personal injury action, the trial court granted defendant’s motion in limine to preclude evidence of a dangerous condition on the playground and then granted summary judgment to defendant on that issue, leaving for trial only a negligent supervision theory. The order precluding the evidence was appealable, although the Appellate Division ultimately held that the trial court was correct.

In Loughran v. Orange & Rockland Utilities, 209 AD2d 917, 619 NYS2d 200 (3d Dept 1994)], the court’s grant of a motion in limine precluding plaintiff from introducing evidence challenging the validity of an easement was appealable because it narrowed the scope of trial issues drastically, if not quite eliminating plaintiff’s cause of action altogether. [See also Barksdale v. New York City Transit Authority, 294 AD2d 210, 741 NYS2d 697 (1st Dept 2002) (motion in limine to preclude plaintiff from offering evidence of defective design was properly granted where the Notice of Claim stated only other theories, and the design theory was first advanced in a Bill of Particulars served only after the Statute of Limitations had expired).]

In Parker v. Mobil Oil Corp., 16 AD3d 648, 793 NYS2d 434 (2d Dept 2005), affirmed 7 NY3d 434, 824 NYS2d 584 (2006), the trial court denied defendants’ motion to preclude plaintiff from introducing expert testimony regarding medical causation, alleging that the expert’s theory of causation was not reliable and not generally accepted in the scientific community (a Frye motion), and also denied defendants’ motion for summary judgment in the event the motion in limine was granted. The Second Department reversed, granted the motions and dismissed plaintiff’s claims. The Second Department observed that while in general orders deciding motions in limine are not appealable, in this case the “motions go to the very merits of the controversy, and if granted, would render the plaintiff’s case meritless. Under these circumstances, the resulting order, whether granting the motions or denying them (emphasis added), affected a substantial right of the parties. Thus, they are appealable.” Id. at 650, 793 NYS2d at 436.

However, if the in limine order does “not limit the legal theory of the liability case,” then the issue does not fall within this exception and the order is not appealable. Rivera v. New YorkHealth and Hospitals Corp., 38 AD3d 476, 476, 832 NYS2d 563, 564 (1st Dept 2007), Rodriguez v. Ford Motor Co., 17 AD3d 159, 160, 792 NYS2d 468, 470 (1st Dept 2005). In bothRivera and Rodriguez, the trial court had granted defendant’s motion to preclude proposed expert testimony. In Rivera, where plaintiff had alleged co-defendant’s motor vehicle had suddenly accelerated after co-defendant put it into reverse gear, the First Department said the trial court’s ruling followed a detailed Frye hearing, and also held that the trial court also properly precluded evidence of “similar prior incidents.”

i. Overbroad, Vague, or Ambiguous

§26:280 BASIC POINTS

Overbroad requests

The requester is only entitled to documents that are “material and necessary” to the prosecution or defense of the action. [See Ch 24, All Discovery.] Requests outside that scope are overbroad and thus objectionable. As respondent’s lawyer, complying with (instead of objecting to) overbroad requests means wasted time and effort. Worse, if you comply, you may needlessly surrender documents with damaging information the opposition may use against your client in settlement negotiations.

Vague or ambiguous requests

The request must describe the requested items with “reasonable particularity.” [See §26:64.] Thus, an unreasonably vague or ambiguous request is objectionable. Respondent’s counsel must be careful not to unintentionally interpret an ambiguous or vague request in a manner that produces favorable results for the opposition.

IN PRACTICE: First review the collected items

Before preparing the response, complete your review of the items you collected for possible production. [See §26:220ff.] Only then can you fully uncover the requests’ instances of overbreadth, vagueness, and ambiguity. And only then can you accurately assess their practical effect, in terms of the specific items you will have to produce unless you object.

§26:281 TWO RESPONSE METHODS

As responding counsel, you can deal with overbroad, vague, or ambiguous requests by employing two general and alternative methods:

  • Object; interpret the request; produce according to your interpretation. [For details, see §26:282.]

  • Object; don’t interpret; don’t produce. [For details, see §26:283.]

[For which method to use, see §26:284.]

§26:282 OBJECT, INTERPRET, AND PRODUCE

To use this strategy in responding to overbroad, vague, and ambiguous requests:

  • Assert your objection; and

  • Interpret the request in a manner that eliminates the overbreadth, vagueness, or ambiguity; and

  • Offer to produce a document or category of documents based on your interpretation of the request.

EXAMPLES:

Request No.1

All documents concerning financial information for ABC Corp.

Request to Request No. 1

ABC Corp. objects to this request on the ground that it is overbroad, arguably calls for the production of every single financial record of the company, and thereby seeks documents that are neither relevant to the issues in dispute in this action nor reasonably calculated to lead to the discovery of admissible evidence.

Subject to and without waiving this objection, ABC Corp. will produce its corporate tax returns and audited annual financial statements for the years 1995 and 1996.

Request No. 2

All documents concerning the employment of John Davis by ABC Corp.

Request to Request No. 2

ABC Corp. objects to this request on the ground that the phrase “concerning the employment” is vague, ambiguous, and undefined.

Subject to and without waiving this objection, ABC Corp. will produce its personnel file of John Davis.

The object-interpret-and-produce method has several benefits:

  • It enables respondent to narrow the scope of the request and thereby determine what documents are required.

  • It advances the general policy favoring open ­discovery.

  • If the objection results in a motion to compel, the method will show respondent made a reasonable attempt to comply, thus bolstering respondent’s credibility with the court.

§26:283 OBJECT AND DON’T PRODUCE

To use this strategy in responding to overbroad, vague, or ambiguous requests:

  • Assert your objection.

  • Do not interpret the request.

  • Do not offer to produce documents in response to the request.

EXAMPLE:

Request No. 1

All documents concerning ABC Corp.

Response to Request No. 1

ABC Corp. objects to this request on the ground that it is overbroad and unduly burdensome. It arguably calls for the production of every single document in the files of the company. It thus seeks documents that are neither relevant to the issues in dispute in this action nor reasonably calculated to lead to the discovery of admissible evidence.

CAUTION: Be reasonable

This strategy is appropriate when the request is so poorly drafted there is no way to know what the requester seeks. Similarly, the strategy is appropriate if the request clearly is beyond the scope of permissible discovery.

§26:284 WHICH METHOD TO USE

As responding counsel you need not apply the same method to every offending request in a given set of requests. Rather, for example, you may object, interpret and produce in response to an ambiguous request, andobject, not interpret (and not produce) in response to an overbroad request.

To choose between the two methods for a given request, consider:

  • The amount of extra time required to interpret and produce.

  • Is an objection and response likely to trigger a motion to compel?

  • What are the chances you will ultimately have to produce documents in response to the request?

  • If you interpret and produce, will you unavoidably produce harmful or embarrassing documents?

  • How objectionable is the request? (Thus, for example, object, interpret and produce if the meaning of an ambiguous request is obscure but discernible.)

IN PRACTICE: Consult with the requester

It is always worth at least one phone call to the requester’s counsel to try and resolve your objections to the request. Opposing counsel may agree to modify the request. If you agree on a modified request, confirm the agreement in writing.

[§§26:285-26:289 Reserved]

ii. Unduly Burdensome

§26:290 UNDULY BURDENSOME VS. OVERBROAD

An objection that a request istoo burdensome is based on a claim that production would be so time-consuming or costly that the response should be excused.

An objection that a request is overbroad is based on a claim that the discovery sought is not relevant to the subject matter of the action.

In practice, the distinction between overbroad and unduly burdensome requests is not a well defined one, and a court may deny a request on both grounds without making a reasoned distinction between them. [See Raisler Corp. v. 101 Park Ave. Assoc., 102 AD2d 794, 477 NYS2d 153 (1st Dept 1984)(demand for “correspondence between or among any of the defendants and any or all of their trade contractors” denied as “overbroad and burdensome”); Savasta v. Katz, NYLJ, August 9, 2000, p 22 (Sup Ct NY Co) (subpoena seeking “all records” or minutes of “any and all” board meetings is overbroad).]

§26:291 THREE RESPONSE METHODS

As responding counsel, you can deal with unduly burdensome requests by employing three general and alternative methods:

  • Object; rephrase the request; and produce as rephrased. [For details see §26:282.]

  • Object; don’t interpret; don’t produce. [For details see §26:283.]

  • Move for a protective order. [For details see §26:363.]

§26:292 OBJECT, REPHRASE, AND PRODUCE

To use this strategy in responding to unduly burdensome requests:

  • Assert your objection.

  • Rephrase the request in a non-burdensome manner.

  • Produce some documents based on your interpretation of the request.

Of course, the objection and rephrasing are subject to challenge. This procedure might be advisable where some of the documents are obviously important and discoverable, and a hearing on a motion challenging the burdensomeness objection would probably result in an order compelling production of at least some of the documents.

§26:293 OBJECT AND DON’T PRODUCE

To use this strategy in responding to unduly burdensome requests:

  • Assert your objection.

  • Do not offer to produce documents in response to the request.

Objecting may be preferable to moving for a protective order because it places the burden on the opposing party to move to compel compliance with the request. [SeeMatter of T./P. Children, 165 Misc2d 333; 629 NYS2d 677 (FamCt Albany Co 1995) (once the objecting party serves a response under CPLR 3122, the burden shifts to the discovering party either to forego discovery of the documents to which an objection has been raised, negotiate a modification of the objected-to request, or request the aid of the court pursuant to CPLR 3124).]

However, if the requesting party challenges the objection, you must plead and prove how truly difficult it would be to comply with the discovery request. [Engelhardt v. City of New York, 181 Misc2d 383, 694 NYS2d 609 (Sup Ct NY Co 1999) (the party must state with reasonable particularity the reason for each objection pursuant to CPLR 3122(a)).]

§26:294 MOVE FOR PROTECTIVE ORDER

Historically in New York, the usual response to unduly burdensome requests was to move for a protective order. [See CPLR 3103 (allowing orders “designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.”]

However, with the 1993 revisions to CPLR 3122, respondents generally object, rather than going to the expense and burden of a motion for a protective order.

[§§26:295-26:299 Reserved]

e. Protect Confidential Information

§26:300 HOW

As respondent’s lawyer, consult your client if the request seeks documents that appear to contain trade secrets or other confidential information. [For client consultation, see §26:301.] Discuss and determine the level of protection required to safeguard that information against improper use.

Next, contact opposing counsel. If you and counsel can agree on the appropriate level of protection, specify the protection terms in:

  • A “confidentiality agreement” that contractually binds the parties to its terms [see §26:302], or

  • An agreement that the parties choose to have “So Ordered” by the court.

Where a judge has already been involved in addressing discovery or substantial matters in a case, the latter alternative is probably the best one.

IN PRACTICE: Prohibit extracurricular use

As respondent’s counsel, always attempt to prohibit the opposition from using disclosed confidential information outside the action at bar. Unless disclosure is expressly conditioned on such a restriction, dissemination is out of your client’s control.

If the parties cannot agree how to treat confidential information, respondent should unilaterally move the court for a protective order. [For protective orders, see §26:363.]

A court will not “rubber stamp” a proposed order, but should grant it if good cause exists. [SeeJackson v. Dow Chemical Co., 214 AD2d 827, 624 NYS2d 675, 677 (3d Dept 1995) (party seeking confidentiality order covering trade secrets must make an initial factual showing that trade secrets would be revealed by proposed discovery; burden then shifts to requester to show that information sought is indispensable to its case).]

§26:301 CONSULT CLIENT

As respondent’s lawyer, discuss the confidentiality problem with your client to find a reasonable solution the client is willing to accept. For example, the client may permit you to disclose the information if it is disclosed only to opposing counsel and one or two selected persons in the requester’s organization.

Suggest solutions your client may not think of. For example, you might suggest limiting the opposition’s litigation use of the confidential information to specified purposes (e.g., to impeach testimony by respondent that contradicts the information).

§26:302 CONFIDENTIALITY AGREEMENT

In response to a request for documents containing confidential information, first object on the basis of confidentiality. Then, if your client is willing to conditionally produce the documents, offer to produce them if the parties reach a satisfactory confidentiality agreement.

EXAMPLE:

Request No. 55

The employment contract between John Davis and XYZ Company, dated on or about January 16, 1996.

Response to Request No. 55

XYZ Company objects on the ground that the request seeks a document that contains XYZ’s proprietary trade secrets.

Subject to and without waiving this objection, XYZ will produce the contract for [requester] ABC Corp. if XYZ and ABC execute a confidentiality agreement with terms satisfactory to XYZ.

IN PRACTICE: Send draft to opposition

Both to reach a satisfactory result, and as starting point for negotiation, send opposing counsel a draft agreement. It should contain all the terms and protections you will require in the final agreement (plus, perhaps, a few you would be willing to sacrifice). If you anticipate confidentiality issues arising, send the draft agreement at the same time as the response, if not sooner.

§26:303 INADVERTENT DISCLOSURE

Inadvertent disclosure does not operate as an automatic waiver of attorney client privilege as long as there is a prompt objection to disclosure after discovering it. [New York Times Newspaper Division v. Lehrer McGovern Bovis, Inc., 300 AD2d 169, 752 NYS2d 642 (1st Dept 2002) (disclosure operates as a waiver of privilege unless it is shown that the client intended to maintain the confidentiality of the document, that reasonable steps were taken to prevent disclosure, that the party asserting the privilege acted promptly after discovering the disclosure to remedy the situation, and that the parties who received the documents will not suffer undue prejudice if a protective order against use of the document is issued);Manufacturers and Traders Trust Co. v. Servotronics, Inc., 132 AD2d 392, 522 NYS2d 999 (4th Dept 1987).]


* EDWARD L. BIRNBAUM is the head of the Litigation Department at Herzfeld & Rubin, P.C. in New York. He is a prolific author of litigation articles and lectures frequently on litigation strategy and techniques for Bar Associations and Continuing Legal Education Institutions. His practice areas in litigation include personal injury, product liability, professional liability, commercial, strategy and trials.

Mr. Birnbaum was Chairman of the New York State Bar Association Committee on the Supreme Court, Chairman of the New York State Bar Association Action Unit No. 6; and a Member of the House of Delegates to The New York State Bar Association. He has served as an arbitrator for the American Arbitration Association, the United States District Court for the Eastern District of New York, and the Small Claims Division of the Civil Court of the City of New York. He has been an adjunct faculty member of New York University School of Continuing Education, teaching a course on the CPLR. He is a Fellow of The Roscoe Pound Institute, and a Fellow of the New York State Bar Foundation.

Mr. Birnbaum is the subject of biography in fifteen different national and international who’s who publications. He has the highest rating from Martindale Hubbell and he was named New York Super Lawyer in 2006. He received an LL.B Degree from New York University School of Law.

CARL T. GRASSO is a member of the firm of Herzfeld & Rubin, P.C. in New York City, specializing in litigation and trial work in the areas of personal injury, product liability and commercial litigation. For the past 27 years, he has been intimately involved in trials all over the United States, as well as in New York. He is an arbitrator in the Small Claims Division of the Civil Court of the City of New York. He holds Martindale Hubbell’s highest rating. He is a cum laude graduate of New YorkLawSchool.

Mr. Grasso also served in the United States Army, while in Vietnam in the Corps of Engineers, and later in the Judge Advocate General’s Corps. He has written for the Military Law Review and the Army Lawyer. He retired from the U.S. Army Reserve as a full colonel in 1996. His awards include the Bronze Star and the Legion of Merit.

JUSTICE ARIEL E. BELEN graduated from BrooklynCollege and Cornell University School of Law, where he earned a Doctor of Law degree with a Specialization in International Legal Affairs. Prior to his election to the bench in 1995, he served as a Supervising Attorney with the Criminal Defense Division of the Legal Aid Society. He later joined the New York City Law Department and served as the Bronx Borough Chief of the Office of the Corporation Counsel.

Justice Belen is a member of the Cornell University Council; Franklin H. Williams Judicial Commission on Minorities; Unified Court System Curriculum Development Committee; New York State Second Judicial District Uniform Rules Committee; and the Kings County Jury Board. He is a founding member of the Cervantes Society.

Justice Belen has headed the Trial Assignment and Jury Coordinating Parts in Brooklyn Supreme Court, on a rotating basis, since 1998.

In March 2005 Justice Belen was appointed an Associate Justice of the Appellate Term, for the Supreme Court for the 2nd and 11th Judicial Districts.

They are the authors of New York Trial Notebook,from which this article is excerpted.