Eve-of-Trial Motion to Preclude Evidence – Sample – January 2017

Here is a sample motion in limine (i.e., immediately prior to trial) seeking rulings favorable to the plaintiff (i.e., the person who filed the lawsuit) before the jury starts hearing the evidence. Hope it helps you!

in limine motionUNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
————————————————-x
FERNANDO COLON,
Plaintiff,
-against-
CITY OF NEW YORK; et al.,
Defendants.
————————————————-x

PLAINTIFF’S MOTION IN LIMINE

PRELIMINARY STATEMENT

   Plaintiff respectfully submits this Memorandum of Law in support of his motions in limine.  Specifically, plaintiff Fernando Colon respectfully submits this motion pursuant to the Federal Rules of Evidence (“FRE”) to preclude any reference to: 1) plaintiff’s prior arrest history; 2) non-party witness Bobby Lee’s criminal history; and 3) to permit plaintiff to treat Det. Tisdale and any other NYPD officer-witnesses as hostile.

 STATEMENT OF FACTS

in limine motion   This case arises from an incident which took place on June 24, 2011.  On that date, at approximately 6:45 p.m., plaintiff Fernando Colon was parked and sitting inside his vehicle in the vicinity of 945 St. Nicholas Avenue, New York, New York.

After an individual named Bobby Lee entered plaintiff’s vehicle, police officers arrived and ordered the individuals in the car to exit.  Detective Tisdale approached the vehicle, in civilian clothes, with his firearm drawn.  After Det. Tisdale approached with gun drawn, he pulled the individuals out of the vehicle, handcuffed them, and made them wait outside the vehicle, near the curb.  The area is a heavily populated, urban, mixed residential and commercial area.  Mr. Colon did business in the area.

Det. Tisdale returned to the vehicle and looked inside.  He claims he then smelled marijuana.  He searched the front passenger compartment and discovered nothing; he searched the rear passenger compartment and, when he opened the closed compartment that held the folding rear seat Detective Tisdale discovered a sealed glass jar; inside the jar he observed a sealed and wrapped ziplock bag; inside the bag he observed marijuana.  He then continued to search, and opened the other rear seat compartment and discovered approximately $20,000 in cash.

in limine motion   The plaintiff was arrested.  The next day, Det. Tisdale sought and obtained a search warrant for plaintiff’s vehicle.  A search of the vehicle, pursuant to the warrant, uncovered nothing.  The criminal case against plaintiff was dismissed on November 10, 2011, on speedy trial grounds.  Plaintiff’s money and van were not returned to him until January 2012.

ARGUMENT

   The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility of certain forecasted evidence.  See Luce v. United States, 469 U.S. 38, 40 (1984)(explaining that the motion in limine is used to “exclude anticipated prejudicial evidence before the evidence is actually offered”).  See also Palmieri v Defaria, 88 F.3d 136, 141 (2d Cir. 1996)(‘The purpose of an in limine motion is to aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial.”).

in limine motion   As an initial matter, evidence must be “relevant” to be admissible.  Fed. R. Evid. 402.  The Federal Rules of Evidence define “relevant” evidence as that “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence.”  Fed. R. Evid., 401.  Further, Federal Rule of Evidence 403 grants a district court discretion to exclude even relevant evidence on the grounds of prejudice, confusion, or waste of time:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Fed R. Evid. 403.

Thus, to be admissible, evidence must be both (1) relevant and (2) not outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.  See Fed. R. Evid. 402 and 403.  Further, Rule 404(b) states, in relevant part, “[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.  This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”  Fed. R. Evid. 404(b).

PLAINTIFF’S PRIOR ARREST SHOULD BE EXCLUDED BECAUSE IT IS IRRELEVANT AND UNDULY PREJUDICIAL

in limine motion   Defendant should be precluded from any reference to plaintiff’s prior arrest.  Plaintiff’s prior arrest when he was seventeen (17) years old (approx. 1999) is of minimal probative value and is unduly prejudicial given, inter alia, the length of time between the arrest and the events underlying this claim.  It should be inadmissible for any purpose.  See Fed. R. Evid. 404, 609(b).

DEFENDANTS SHOULD BE PRECLUDED FROM DELVING INTO NON-PARTY WITNESS BOBBY LEE’S CRIMINAL HISTORY

   Defendants should be precluded from asking questions or presenting any evidence of Bobby Lee’s criminal history pursuant to Rules 401, 402 and 403 as totally irrelevant, will confuse the jury, is a waste of time and is unduly prejudicial.

At his deposition, Bobby Lee stated that he had three prior arrests that resulted in convictions, and that the first arrest occurred in either 2006 or 2007.  These arrests are wholly irrelevant not only to this cause of action but to his recollection and credibility as a witness to the June 24, 2011 incident involving Detective Jerome Tisdale and the New York City Police Department.

in limine motionBobby Lee’s criminal history should be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury…”  Fed. R. Evid. 403.  “In making a Rule 403 determination, courts should ask whether the evidence’s proper value “is more than matched by [the possibility]… that it will divert the jury from the facts which should control their verdict.”  (internal citations omitted).  Potenza v. City of New York, 2009 U.S. Dist. LEXIS 60877 (E.D.N.Y. July 15, 2009).  Here, the prejudicial impact of Bobby Lee’s criminal history is far outweighed by any probative value that such evidence might have.  Accordingly, the Court should preclude the defendants from introducing such evidence under Rule 403.

PERMIT PLAINTIFF TO TREAT ALL NYPD OFFICERS AS HOSTILE

   Rule 611(c) provides that leading questions ordinarily should not be used on direct examination, except “when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.”  Fed. R. Evid. 611(c)(2).  Plaintiff submits that Detective Tisdale’s testimony, as well as any other NYPD officer-witness will be adverse to Plaintiff, and therefore requests permission to treat him as hostile.

CONCLUSION

in limine motion     For the reasons stated above, plaintiff respectfully requests that the Court exclude: 1) plaintiff’s prior arrest history; 2) non-party witness Bobby Lee’s criminal history; and 3) to permit plaintiff to treat Det. Tisdale and any other NYPD officer-witnesses as hostile.

Dated:  White Plains, New York
January 24, 2017

Respectfully submitted,

MARTIN + COLIN, P.C.
Attorneys for Plaintiff

___S/_________________________
WILLIAM MARTIN
Office + Post Office Address:
44 Church Street
White Plains, New York 10601
(914) 771 7711

Refinance of $1.1 Million Commercial Building Completed – November 2015

Summary of the Transaction

Refinance of Commercial BuildingMartin + Colin, P.C. announces the successful refinance of an $1.1 Million commercial building in the Bronx, New York.  The building is a standard commercial building containing, among other tenants: a pizzeria, a ribs and wings restaurant, a Chinese-style restaurant and a discount variety store.  The owner sought refinancing because his commercial mortgage was coming due.  The experienced real estate lawyers at Martin + Colin, P.C. were able to assist the owner in bringing the refinancing to a successful closing.

Our Expertise Saved the Client Money

Among other important provisions, the real estate closing attorneys at Martin + Colin, P.C. successfully negotiated a clause permitting the future assignment of the mortgage.  Here’s the valuable clause:

  • Assignment of Mortgage. Upon Borrower’s written request, Lender shall permit an assignment of this Mortgage upon repayment of the Loan in full in accordance with the terms of the Note provided that the Borrower pays Lender an assignment fee of 0.25% of the Loan Amount in furtherance of the assignment at the time of assignment.

Refinance of Commercial BuildingWhat is the significance?  Unlike home loans, commercial loans often last only five years.  During the loan period, the borrower usually pays interest only.  Thus, at the end of the five year loan period, the borrower will still owe $1.1 Million.  The borrower will need to find another bank to lend him $1.1 Million for another five year loan period.  When the borrower identifies that new lender, the closing is scheduled.  Immediately after closing on the new loan, the new lender will want to record the new mortgage, at borrower’s expense.  The recording tax on that new mortgage could add thousands of dollars to the borrower’s closing costs.  However, because we negotiated the “Assignment of Mortgage” clause into the loan documents, the cost to the borrower to record the next mortgage for the next five year loan will be more like zero rather than several thousand dollars.  That’s a big savings.

We Can Make Your Real Estate Transaction A Success

Refinance Commercial BuildingThe experienced real estate lawyers at Martin + Colin, P.C. can apply their expertise and help you with your real estate transaction.  Call us at (914) 771 7711.

Traumatic Brain Injuries – An Introduction

Today we begin our 2015 series of helpful articles on Brain Injury.

Understanding the Basics of Brain Injury Starts With Anatomy

In order to understand the significance of any traumatic brain injury, a basic understanding of anatomy and physiology is certainly helpful.  If we want to comprehend the extent of any bodily injury and repair process, one must first look at typical structure and function.The Brain

The brain is broken down into various regions, sometimes referred to as lobes, and connects to the spinal cord by way of the brain stem.  Scientific and medical professionals may also refer to specific areas of the brain, such as the hippocampus, amygdala, and cerebellum, as individual structures that serve a more specific purpose in terms of function.

The organ itself is suspended in a viscous liquid known as cerebral spinal fluid.  Although the term ‘float’ has been used to describe how the brain sits within the cranial cavity, the brain is held into place by various connective tissues called meninges.  This prevents movement of our brains during regular to moderate activity.  In the event of a traumatic injury, excessive force can cause the brain to suddenly jar, jerk, or just harshly move around within the skull.

The brain is fed by a myriad of different arteries and vessels that wrap around the outermost areas of the brain, as well as weave into and through the innermost structures.  This system delivers imperative oxygen, as well as other nutrients to all areas of the brain.  In a healthy brain, blood never crosses into the brain matter, but rather smaller molecules can pass through the artery membranes and diffuse across, through, and around the neuronal cells of the brain matter itself.  Blood leaking into the brain is an immediate indication of injury.  There are four primary sources that feed blood into the cerebral areas, the right and left vertebral arteries, as well as the right and left carotid arteries, and the smaller intraneuronal arteries branch off from these.  Depending on the location of a traumatic brain injury, blood flow can be hindered to a significant portion of the brain if it occurs near one of these larger structures.

A healthy brain is comprised of various neuronal cell types that operate by sending electrical signals from one cell to another.  Thick nerves that send primary signals are called cranial nerves, and these are surrounded by a plethora of smaller nerves that penetrate and extend throughout the brain, eventually connecting to the brain stem.  Thousands of these cells create an incredibly complex highway of transmission lines that not only use charged ions to communicate, but also interact through the release, fluctuation, and binding of various hormones, also known as neurotransmitters.  Almost every bodily function requires a complicated series of electrical transmissions to and from multiple areas within the brain.  The most amazing part about this type of communication is the fact that it takes only a fraction of a second for our brains to send and process these signals.

Unlike bones or skin, our brains have a limited number of cells from which they can derive certain reparative functions.  From birth, we have a very exclusive pool of stem cells that can successfully grow into functioning neurons.  This is precisely why serious brain damage from some traumatic injuries can sometimes be irreversible.

Despite a limited number of neuron-intended stem cells, this organ has an incredible ability to grow and change.  Neural plasticity is the term used to describe the brain’s ability to adapt to certain situations.  For example, repeated stimulation and electrical activity in a given location might prompt the growth and development of new neurons.  Some brains are also capable of rerouting certain signals in the event of injury or atypical development.  Plasticity varies from one individual to the next, so making a specific prediction about repair or function improvement following a brain injury can be somewhat of a challenge.Logo-M-C-Only-2011

Now that you have a general understanding of brain anatomy and its ability to function, we can dive into the specifics of what exactly happens during a traumatic injury, how that might affect overall human function, and how the brain might attempt to repair itself.

Click here to jump to Article Two in the Series:  Types of Traumatic Brain Injuries

The car accident and personal injury lawyers at Martin + Colin, P.C., handle brain injury cases.  If you have been hurt in an accident due to the negligence of another person, our attorneys may be able to help.  Please email us by using the ‘Contact Us’ form on this page.

Call Now! (914) 771 7711

Settlement for White Plains Resident Injured in Car Accident – Oct. 2014

Martin Colin, P.C. announces a cash settlement for a driver injured in an automobile accident on Tarrytown Road in July 2013.  The injured plaintiff, a White Plains resident, was driving eastbound, on his way home from work.  As he was stopped at a traffic light at the intersection with Knollwood Road, our client’s vehicle was rear ended by another vehicle.  Immediately after the accident, the injured driver sought treatment at White Plains Hospital and informed the physician that during the car crash he was thrown forward and parts of his body struck the inside of his vehicle, including his knees. He also reported neck and mid to low back pain at a level 8 out of 10, as well as left knee pain.Business Woman 2012 - Business Attorneys

A treating doctor recommended that the driver injured in the car accident undergo an EMG of the upper extremities and to continue to follow up with physical therapy treatment.  The physical therapy treatment helped relieve the injured driver’s pain, however he has had to reduce the amount of hours he could work for his employer due to the pain in his neck and back. Despite all of the medical treatment and physical therapy, our client continues to feel pain in his neck and back as a result of the accident.

The insurance company for the offending vehicle acknowledged responsibility for the accident but challenged the significance of our client’s bodily injuries.  Nevertheless, the lawyers at our firm negotiated a settlement satisfactory to our client. Logo-M-C-Only-2011

The experienced personal injury and auto accident lawyers can be contacted by phone at (914) 771 7711 or online at martincolin.com

 

Cash Settlement for Injured Driver in Rear-End Car Accident – April 2014

Martin Colin, P.C. announces a cash settlement for a driver injured in a car accident in the Village of Ossining, County of Westchester, New York.

2012_Woman_Sitting_Beside_Car_iStock_000020361024_ExtraSmallThe plaintiff, a resident of Ossining, in Westchester, New York, was the driver of her own vehicle traveling eastbound on Croton Avenue in Ossining, New York in 2013.  She had stopped at a red light when she was struck from the rear by the defendant’s vehicle. The plaintiff had her 9 year old daughter and 15 year old niece in the vehicle while the accident happened.  There was obvious physical damage to both vehicles visible to the naked eye.

Our client, the injured plaintiff, did not feel any immediate pain from it.  However pain in her back increased throughout the night due to this unfortunate incident.  Approximately 6 days after the accident, the plaintiff started physical therapy in Sleepy Hollow to treat her pain and the dysfunction of her thoracic and lumbar spine.  She described the pain as a burning sensation at a consistent level of 8 on a scale of 1 to 10.  As the physical therapy was not alleviating the pain, she began acupuncture.  The acupuncture treatment succeeded in reducing the pain but did not render the injured plaintiff pain-free. Despite all of the medical treatment, physical therapy and acupuncture sessions our client endured, she continued to feel pain in her back as a result of the car accident.

As soon as we were hired, we pressed our claim for money damages for our client to compensate her for her pain and suffering, which continues to the present day.  We successfully convinced the insurance company for the offending driver that in the past, jury verdicts for similar back injuries, corroborated by objective medical testing, often exceeding $100,000.  After conducting their own investigation, and reviewing our injured client’s medical treatment, we obtained a settlement for our client.  Not only was the client happy with the amount of the settlement, but she was relieved that we were able to settle the claim within a year of the car crash.

Testimonios

¡Gracias!

Gracias por todo lo que ha hecho por nosotros y por haber puesto siempre los intereses de nuestra familia en primer lugar. Que Dios le bendiga a usted y a su familia hoy y siempre.

Con un gran aprecio.

Diciembre del 2011 desde Haverstraw, Nueva York

 

¡Gracias!

Querido Billy Martin,

Sólo queríamos expresar nuestro agradecimiento por su tiempo y sus sabias palabras. No pensábamos que fuera posible conocer a un abogado honesto, pero usted lo es. Gracias de nuevo por su generosidad.

8 de Diciembre del 2011, desde Stony Point, condado de Rockland, Nueva York

 

¡Los abogados de Martin & Colin han sido de GRAN ayuda!

Queridos Lisa y Hill,

Quiero dales las gracias por encargarse del caso de mi hermano. Se que puede ser una persona difícil, pero tengo que decir que no lo había visto así de sano en muchos años. Tengo fe en que esto seguirá siendo así. En otra nota, me gustaría veros a los dos. Seguimos en contacto.

10 de Agosto del 2011 desde Fairfield, Connecticut

 

Grandes abogados, gran servicio, ¡ganaron mi caso!

Los abogados de Martin & Colin, tanto Lisa como Hill, han trabajado en dos casos diferentes y han GANADO ambos, los dos son abogados inteligentes y trabajadores abogados que se preocupan por sus clientes, lo que no es fácil de encontrar. Los recomendaría a cualquier persona que busque un abogado. ¡Son los mejores!

25 de Enero del 2011 desde Port Chester, Nueva York

 

Feliz de haber encontrado a Martin & Colin

Espero que sepa cuánto significa para nosotros, y lo mucho que lo apreciamos.

2 Corintios 9:10-11 (Nuevo testamento)

10 Y (Dios) nos provee de la semilla del el pan que comemos, y también proveerá y multiplicará vuestras [resources for] siembras e incrementará los frutos de tu rectitud [que se manifiesta en bondad, amabilidad y caridad activa]. 11Así te enriquecerás de todas las cosas y de todas las formas, para que así seas generoso, y administradas por nosotros traerán fuerza a la gracia de Dios.

2010, desde Sleepy Hollow, Nueva York

 

Sr. Martin:

No podemos expresar con palabras nuestra gratitud. Gracias una y otra vez por el favor, su paciencia y su esfuerzo, por no mencionar su gran labor. Por favor, acepte esto como una pequeña muestra de nuestro agradecimiento y nuestras plegarias.

28 de Agosto desde Sleepy Hollow, NY

The injury lawyers at Martin Colin, P.C., headquartered in White Plains, New York, handle accident claims, negligence and personal injury cases.  If you have been hurt in an accident due to the negligence of another person, our attorneys may be able to help.

Please call (914) 771 7711 or email using the ‘Contact Us’ form on this page.