An increasingly commonplace procedural mechanism for narrowing evidentiary issues before a hearing begins is the motion in limine.  A new proposal proffered by the Commercial Division Advisory Council (“CDAC”), put out for public comment on October 27 by the Office of Court Administration, seeks to amend Commercial Division Rule 27 in order to provide much-needed guidance on such motions.

A motion “in limine” (“at the threshold” or “at the outset”) is a prophylactic request made to the court — and argued outside the presence of the jury — seeking 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” (State of New York v Metz, 241 AD2d 192, 198 [1st Dept 1998]). While there is no express statutory basis for a motion in limine, a court’s inherent power to admit or exclude evidence provides the basis for the motion.

There are certain strategic advantages to making a motion in limine. Aside from its main function of preventing opposing counsel from providing inflammatory or prejudicial  evidence before the jury (including certain lines of questioning, arguments, and objections), it affords the court the opportunity to make a considered ruling, rather than being forced to hastily decide issues off-the-cuff under the time constraints and pressures of trial.  It can also be utilized as a delay tactic, undercutting well-prepared adversaries who have no doubt spent days and hours preparing for trial.

On the other hand, there are certain risks to a motion in limine to the extent that it potentially may draw the adversary’s attention to evidence, arguments, or theories that it may have not previously considered. It may also afford opposing counsel with ample opportunity to conduct thorough research on the evidentiary issues raised by the motion and oppose it.

And yet, the current Commercial Division Rule 27 provides no specific guidance about the subject matter included in motions in limine, or the timing of opposition papers, merely providing: “The parties shall make all motions in limine no later than ten days prior to the scheduled pre-trial conference date, and the motions shall be returnable on the date of the pre-trial conference, unless otherwise directed by the court.”

In its proposal, the CDAC seeks to amend Rule 27  to add a deadline for the service of opposition papers to motions in limine – no later than two days before the return date of the motion and to provide guidance on the types of broad issues that motions in limine should address   for example, (1) the receipt or exclusion of evidence, testimony, or arguments of a particular kind or concerning a particular subject matter, (2) challenges to the competence of a particular witness, or (3) challenges to the qualifications of experts or to the receipt of expert testimony on a particular subject matter.

Additionally, the proposal recommends that objections to the admissibility of specific exhibits or specific deposition testimony based on basic threshold issues such as lack of foundation or hearsay shall be made under Rule 28 (Pre-Marking of Exhibits) and Rule 29 (Identification of Deposition Testimony).

Lastly, the proposal admonishes that a motion in limine is an improper substitute for an untimely motion for summary judgment made at the eleventh-hour and designed as a guise to have the court decide dispositive legal issues. As the CDAC states in its Rationale for Revision, “the courts will not be receptive to such an initiative.”

For those interested, the public comment period is open until December 30, 2022, and comments are to either be: emailed to; or sent to Anthony R. Perri, Esq., Acting Counsel, Office of Court Administration, 25 Beaver Street, 11th Fl., New York, New York 10004.