| Ofman v Ginsberg |
| 2011 NY Slip Op 08334 [89 AD3d 908] |
| November 15, 2011 |
| Appellate Division, Second Department |
| Mendel E. Ofman, Appellant, v Steven E. Ginsberg,Respondent. |
—[*1] Wenig, Saltiel & Johnson, LLP, Brooklyn, N.Y. (Meryl L. Wenig of counsel), forrespondent.
In an action to recover damages for legal malpractice and breach of contract, the plaintiff appealsfrom a judgment of the Supreme Court, Kings County (Baily-Schiffman, J.), entered May 6, 2010,which, upon an order of the same court dated February 4, 2010, granting the defendant's motion,denominated as one in limine to preclude the plaintiff from adducing certain evidence at trial and, ineffect, directing the award of judgment as a matter of law to the defendant at the close of the plaintiff'sopening statement, is in favor of the defendant and against him dismissing the complaint.
Ordered that the judgment is reversed, on the law, on the facts, and in the exercise of discretion,with costs, the defendant's motion is denied, the complaint is reinstated, the order is modifiedaccordingly, and the determination in the order, in effect, directing the award of judgment as a matter oflaw to the defendant at the close of the plaintiff's opening statement is vacated.
The plaintiff commenced this action to recover damages for legal malpractice and breach ofcontract. He alleged that the defendant, who represented him in a separate action, had deviated fromgood and accepted legal practice while negotiating the language of a stipulation of settlement, and thatthis failure to render competent legal services proximately caused him to sustain actual and ascertainabledamages. After jury selection, and after the parties made their opening statements at trial, the defendant,based on the doctrine of collateral estoppel, made a motion, denominated as one in limine to precludethe plaintiff from adducing any evidence, at trial, on the issue of whether the stipulation of settlementwas intended to act as a general release. The Supreme Court granted the motion and then, havingprecluded all evidence related to the sole deviation alleged by the plaintiff, directed the award ofjudgment as a matter of law to the defendant. This was error.
Although the defendant characterized his motion as one for in limine relief, he argued that the causeof action alleging legal malpractice could not be maintained because of collateral estoppel (seeCPLR 3211 [a] [5]). Notably, he did not raise this objection or defense in either his answer or hisoriginal motion to dismiss the complaint (see CPLR 3211 [e]). Accordingly, the [*2]defense based on the doctrine of collateral estoppel was waived(id.). Under the circumstances, we agree with the plaintiff that the defendant's trial motion was,in effect, an untimely motion for summary judgment (see West Broadway Funding Assoc. v Friedman, 74 AD3d 798, 798[2010]; Brewi-Bijoux v City of NewYork, 73 AD3d 1112, 1113 [2010]; Matter of City of New York v Mobil Oil Corp., 12 AD3d 77, 80-81[2004]; Rivera v City of New York, 306 AD2d 456, 456-457 [2003]; Rondout Elec. vDover Union Free School Dist., 304 AD2d 808, 811 [2003]) based on a defense that was waived(see CPLR 3211 [e]). "[A] motion in limine is an inappropriate substitute for a motion forsummary judgment" (Rondout Elec. v Dover Union Free School Dist., 304 AD2d at 810-811).Moreover, the Supreme Court improvidently exercised its discretion in considering this motion since thedefendant failed to offer any excuse for the untimely submission of the motion (see CPLR 3212[a]; Brill v City of New York, 2 NY3d648 [2004]). As the motion should have been denied, we reverse the judgment and reinstate thecomplaint (see Brewi-Bijoux v City of New York, 73 AD3d at 1113). Mastro, J.P., Eng,Belen and Hall, JJ., concur.