Condemnation and Tax Certiorari – The Use of a Motion in Limine in a Condemnation Case

By M. Robert Goldstein & Michael Rikon

August 24, 2005

In its purest sense, a motion in limine is an application brought on in the beginning or threshold of a trial which seeks to exclude anticipated prejudicial evidence. In State of New York v. Metz, 241 A.D.2d 192, 198, the First Department stated, “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.” The Metz case involved an action brought under the Martin Act alleging securities fraud. In the lower court, the State’s motion for summary judgment based on depositions taken unilaterally was denied and the use of same limited at trial. The Appellate Division reversed noting the function of an in limine evidentiary ruling and holding that the Court should have required defendants to oppose the summary judgment motion.

There is no requirement that a motion in limine be made in writing and be in accordance with CPLR 2214. Wilkerson v. British Airways, 292 A.D.2d 263 (1st Dept., 2002). However, some courts have stated that a motion in limine which challenges evidence which is claimed to be inadmissible, immaterial, prejudicial or requests a limitation on the use of evidence should be in writing. This is especially true if the motion in limine asserts that an expert will tender an opinion which cannot be made with a reasonable degree of scientific certainty.

We think it certainly advisable to file a formal written motion if you want the trial court to give your application the appropriate consideration.

In a condemnation case, where appraisals are generally exchanged long before trial, courts do not readily appreciate trial objections premised on a deficiency of, for example, an alleged violation of court rules. No judge will appreciate a party objecting to an appraisal for some perceived omission which could have been addressed prior to trial. We think this is true in all types of litigation, but especially in condemnation. What sets a condemnation case apart is the fact that an eminent domain proceeding is not a private litigation.

The major distinctions between the ordinary civil case and the condemnation claim is the constitutional obligation to pay just compensation to the former property owner. A condemnation proceeding is not a private litigation. There is a constitutional mandate upon the Court to give just and fair compensation for any property taken. (Emphasis supplied) Yaphank Development Company, Inc. v. County of Suffolk, 203 A.D.2d 280 (2nd Dept., 1994), citing Matter of County of Nassau [County Beach Club], 43 A.D.2d 45, aff’d 39 N.Y.2d 958.

The Courts have also stated that this means ‘just’ to the claimant and “just” to the people who are required to pay for it. The rule is abundantly clear that property must be appraised at its highest and best use and paid for accordingly. Since the constitutional mandate is upon the Court, it is the Court that is responsible to assure that just compensation is awarded. Indeed, if it cannot do so, when for example both sides employ an improper theory of damages, the Court must remit for retrial upon proper theory. Frank Micali Cadillac-Oldsmobile, Inc. v. State of New York, 104 A.D.2d 477 (2nd Dept., 1984).

An example of an appropriate in limine motion in a condemnation case is an application to exclude evidence and testimony relating to environmental contamination remediation costs. See Matter of City of New York v. Mobil Oil Corporation, 2005 N.Y. Misc. Lexis 1038 (Gerges, J.) Affirmed 12 A.D. 3rd 77 (2nd Dept. 2004). Also see D’onofrio v. Village of Port Chester, 2005 N.Y. Misc. Lexis 1461 (Dickerson, J.)

New York has adopted Court rules which pertain to the format and exchange of appraisals in condemnation and tax certiorari cases 22 NYCRR Sec. 202.59 et seq. The rules are generally followed, but not completely. For example, while the rules require filing appraisals with the clerk of the part, the only court that rigorously requires filing and effects an exchange of reports after both sides file, is the Court of Claims. Other court clerks refuse to receive appraisals leaving it to the litigants to exchange. (Some clerks have explained that there are no facilities available to handle the large number of appraisals often involved). While the rules provide that what appears to be a rigorous format, judges are free to excuse defaults, especially when they are insubstantial and do not cause prejudice. If the party believes that there is a major deficiency, a motion in Limine should be quickly filed.

Just as the Appellate Division in the Metz case held that the trial court was in error in treating a summary judgment motion as a motion in limine, it is wrong to seek summary judgment by a motion disguised as one in limine. If the relief requested in dispositive of the entire claim, a condemnation court will generally view such applications with extreme displeasure, especially after the exchange of appraisals. Since the condemnation claim is proven and defended by means of appraisals, if the motion in limine results in striking the appraisal courts have permitted a resubmission of a new appropriate appraisal.

If a condemnor objects to a claim, it is required to timely file an answer under the Eminent Domain Procedure Law. Only the State of New York is exempt from this requirement in the Court of Claims. EDPL Sec 507. Filing a motion without an answer would be appropriate if the motion is filed immediately after the claim is filed. However, if the condemnor fails to file an answer and then fails to timely move before it is required to file a Note of Issue, such an application would be untimely. The Eminent Domain Procedure Law requires a condemnor to file a Note of Issue after the time set forth in the vesting order to file claims expires. EDPL Sec 506. There is statutory obligation on the condemning authority to move the proceeding to trial. Most of the time a Note of Issue is not filed until after the exchange of appraisals is completed, or after the court schedules trial on a date certain. At this point, filing a motion in limine is late and one should request permission to file any motion from the court and should also have a very good reason excusing the delay.

A motion in limine which is in reality a motion to dismiss is fatally late if a condemnation claim is ready for trial and a date certain is fixed. The motion is untimely and may not be considered no matter its merit. This is ruling of the Court of Appeals in Brill v. City of New York, 2 N.Y.3d 648 (2004) which although not a condemnation case readily shows the court’s lack of tolerance for such conduct.

Reprinted with permission from the August 24, 2005 edition of the New York Law Journal © 2010 Incisive Media Properties, Inc. All rights reserved. Further duplication without permission is prohibited.