Motion In limine Denied as Belated Motion for Summary Judgment

On March 12, 2015, Justice Bransten of the New York County Commercial Division issued a decision in Avail Shipping Inc. v. DHL Express (USA), Inc., 2015 NY Slip Op. 30348(U), denying a motion in limine on the ground that it amounted to an untimely motion for summary judgment.

In Avail Shipping, the defendant sought to exclude testimony from the plaintiff's damages expert on the ground that it incorporated damages that were not "reasonably foreseeable at the time of contracting." Justice Bransten denied the motion without prejudice, noting that it asked the court to determine whether an issue of fact exists, which must be raised on summary judgment, not a pre-trial evidentiary motion. The court explained:

Plaintiffs seek to introduce evidence about "terminal value" damages. DHL seeks an order limiting evidence to damages that were reasonably foreseeable at the time of contracting. Granting DHL's motion would be "the functional equivalent of a motion for partial summary judgment dismissing the complaint insofar as it sought damages . . . in excess of the damages that defendants believe are appropriate."

In essence, DHL asks this Court to rule that no reasonable juror could find that Plaintiffs could reasonably expect to profit from the Reseller Agreement after the end of its term. By arguing that the terminal value damages were not, as a matter of law, reasonably foreseeable at the time of contracting, DHL asks this Court to determine whether an issue of fact exists.

Whether or not an issue of fact exists is a question properly resolved on summary judgment.

New York courts limit the use of motions in limine when they decide dispositive issues, as if on summary judgment, but are not accompanied by a motion for summary judgment.

(Citations omitted) (emphasis added). Justice Bransten noted that the defendant had the plaintiff's expert report when it moved for summary judgment two years prior "but chose not to seek summary judgment concerning the measure of Plaintiffs' damages." Accordingly, she concluded,"[t]he Court cannot allow [the defendant] to make a second summary judgment motion over 700 days after the Note of Issue was filed." The lesson for defense counsel is to be prepared to challenge the plaintiff’s damages case on summary judgment.