The following documents were read on this motion: [1] Plaintiff’s Motion In Limine, [2] Defendant’s Affirmation in Opposition to Plaintiffs in limine motion, [3] Memorandum of Law submitted by Plaintiff, [4] Memorandum of Law submitted by Defendant, [5] Richmond County Supreme Court Transcript of the parties’ May 4, 2017 Court Appearance. DECISION ON MOTION Procedural History Relevant to this Motion This matter was assigned to this court in January 2022, after the previously assigned Justice, Hon. Barbara I. Panepinto retired. On January 20, 2022, the court held a telephonic conference with the attorneys and issued an order for counsel to submit Statements of Proposed Disposition on or before January 31, 2022 and set the matter down for a pre-trial conference. On February 2, 2022, this court held a pre-trial conference with the parties and their attorneys, and issued an order for trial dates, submission of pre-trial memoranda of law, and the attorneys were reminded to comply with the trial rules promulgated by Part MP-7. Trial dates were allocated, and ordered as follows: April 5, 6, 7, and 8, and July 19-21. While the parties were preparing Stipulated Facts for trial, they contacted the court for a ruling as to the admissibility of certain documents that were prepared during a mediation session that the parties engaged in or about 2016. The court ruled in favor of Defendant and denied the admissibility of the document(s), as they were unsworn, and created for the purposes of settlement only. On March 28, 2022, Plaintiff’s counsel submitted a trial binder, and within same, as an exhibit, was “Plaintiffs in limine Motion.” No opposition was submitted as of April 5, 2022. The court held a conference in chambers with the attorneys to discuss the procedure for trial, the witness lists, exhibit lists, and to discuss any in limine motions. The court’s conference with the attorneys was extensive and lasted for more than one hour and a half. The court provided Defendant with an opportunity to submit written opposition to Plaintiffs in limine motion, and an affirmation in opposition was submitted on April 6, 2022. There is no requirement that an in limine motion be made in writing and be in accordance with rule governing motion papers, and an oral motion in limine may properly be considered by court (McKinney’s CPLR 2214). Plaintiff’s motion was not filed in the traditional fashion with the clerk’s office, nor was a copy of same uploaded to NYSCKF. However, the court directed the clerk to upload same, for completeness of the file. The court orally ruled on the motion from the bench for the purpose of expediency, and this Decision is the official written Memorandum Decision and Order constituting “order paper,” on the motion. Defendant requested an opportunity to review same with his client, and to discuss the possibility of appeal. The court vacated the April trial dates, mindful that the parties would need time to renew their trial strategy, and/or procedure for trial, because of this Decision and Order. The trial is scheduled to resume on July 19, 2022. I. Valuation Date of the Defendant’s Business XXXXXXX Defendant’s motion sequence #003 dated October 9, 2019, to set the valuation date of Defendant’s business, XXXXXXX, as of the date of trial, and Plaintiffs Cross-Motion to set the valuation date as of the date of commencement were referred by Hon. Barbara I. Panepinto to Special Referee Dennis Owens to hear and determine. A Short Form Order denying Defendant’s motion and granting Plaintiffs motion was entered on August 3, 2021 by the Special Referee. Defendant was served by Plaintiff with Notice of Entry on August 4, 2021. The Defendant did not move to reargue or file a Notice of Appeal as to the Special Referee’s Decision. More than eight (8) months have elapsed from Notice of Entry. The Defendant had a full and complete opportunity to litigate this issue and made the same arguments before the Special Referee that he makes before this court. Defendant cannot use this trial as an opportunity for a second chance on the issue. There were no facts and/or circumstances presented to this court that would warrant further evaluation of this already determined issue. The matter will not be re-litigated at trial, and the determination made by Special Referee Dennis Owens, is now the law of the case. The doctrine of law of the case applies to legal determinations that were necessarily resolved on the merits in a prior decision of the court, and to the same questions presented in the same case (Deutche Bank Natl Trust Co v. Gambino, 181 AD3d 558 [2d Dept 2020]; Mosby v. Parilla, 140 AD3d 1129, 1130-1131 [2d Dept 2016]). The doctrine articulates a sound policy that once an issue is judicially determined, it should be the end of the matter as far as judges and courts of coordinate jurisdiction are concerned (see Matter of Oyster Bay Assoc Ltd Partnership v. Town Bd of Town of Oyster Bay, 21 AD3d 964, 966 [2d Dept 2005]). Therefore, the valuation date of Defendant’s business, XXXXXXX., for the purpose of trial, is October 6, 2016 (the date of commencement), as the law of the case, and the court need not grant further review upon the issue at trial. Moreover, despite Defendant’s arguments to the contrary, which the court has considered, this determination does not preclude either party from proffering evidence at trial of their efforts affecting either the appreciation or dissipation of the value of the business prior to the date of the commencement of the action (Scharfman v. Scharfman, 19 AD3d 474 [2d Dept 2005]). There is however, a qualifier in this case, that the defendant is precluded from proffering evidence of any valuation of the business that is less than $2,450,000.00 (Two Million Four Hundred Fifty Thousand and No Cents). This issue is discussed at length in section II of this Decision. II. Defendant is Precluded from Offering Evidence of Valuation less than $2,450,000.00, as per the parties agreement on the in court record of May 4, 2017. This action for divorce was commenced almost six years ago. Plaintiff has been represented by the same attorney from commencement. Defendant was represented by an attorney from commencement and filed a Consent to Change Attorney to his present counsel, on November 30, 2020. The case has been on the court’s calendar more than 40 (forty) times since at least January 2017, not including an appeal to the Appellate Division, Second Department on an unrelated issue determined by a Special Referee. To say that this matter has been contentious and vigorously litigated would be an understatement. According to the record, the papers submitted, and the arguments of the parties, there was a matter of great exigency in or about May 2017, which involved Defendant’s desire to sell the major portion of the business (in accord with the court’s Preliminary Conference Order), even though the business evaluator, to wit “Brisbane,” had not completed its valuation of said business, and required more documentation from Defendant, to finalize same. On May 4, 2017, the parties appeared before Hon. Barbara I. Panepinto, and this court has obtained the transcript from that proceeding. During the proceeding, Plaintiff was represented by her present attorney, and Defendant was represented by his former attorney. Justice Panepinto conferenced the matter with the attorneys, and she memorialized that conference on the record. The transcript of May 4, 2017, is incorporated by reference, and attached to this Decision and Order. Justice Panepinto addressed the outstanding documents that were required to be produced to Brisbane for the valuation to be completed [Transcript of May 4, 2017, p. 2]. In addition, and germane to the instant motion, Justice Panepinto stated as follows: The Court: The plaintiff consents to defendant selling, question mark, assets for one of the businesses [The XXXXXXX] but that cant happen until [Defendant's attorney] prepares a stipulation to send to [Plaintiffs attorney] that both parties are going to sign with all of the details about what’s going to be sold. And, obviously, [Defendant's attorney], your client understands that’s without prejudice to her rights to claim whatever’s being sold at the value on the date of commencement, which is what the Brisbane valuation is for” [Transcript of May 4, 2017 p. 3] [Emphasis added]. Plaintiff’s Attorney: Correct. I want to make a clear record my client has no idea what is being represented to us with regard to the need to sell, the desire to sell, the sale price, without an accountant’s valuations. She’s doing this on the representation that is has to be done, and it is without prejudice to all of her rights regarding same. The Court: At full risk to the defendant. Plaintiff’s Attorney: Understood and agreed. Defendant’s Attorney: That is understood, Judge. The Court: I just want to say that you both understand that clearly. I just wanted it to be on the record so that the parties understand, both sides, that’s without prejudice to her to make any claims respective of whatever — contrary to whatever the sale price is or the need to sell is and it’s full risk to him for her claims. Defendant’s Attorney: Fine. The court then discussed some additional matters, and on page 5 of the transcript, stated as follows: The Court: “So Plaintiffs Attorney going to write up a short form order for the interim and on the motion — adjourned to settle the motion or reply and final — hopefully, final compliance conference…” The assets of the business were sold after this court appearance. Defendant did not settle an order on notice related to the May 4th conference. The parties did not execute a stipulation as to the details regarding the sale. Defendant went forward and sold assets of the business for $2,450,000.00 (Two Million Four Hundred Fifty Thousand Dollars and No Cents). The Plaintiff alleges that Defendant should not be able to introduce exhibits and testimony evidentiary of, and in furtherance of the deduction of business liabilities from the $2,450,000.00 purchase price, for the purpose of making arguments regarding the valuation of the business as of the date of sale. Defendant opposes. Although not dispositive of the issue, the conduct of the parties and their omission of discovery on the matter, lends even credible evidence that the Defendant knew or should have known what he bargained for when he obtained Plaintiffs consent for the sale of the business. The Defendant argues that the entirety of the business was not sold, and therefore, the sale price should not constitute a minimum valuation, but that argument is academic at best, because the Defendant agreed that the sale was “at full risk” to him, because the Plaintiff would not be able to know the nature and the value of the assets at the time of the sale. It is clear from the parties’ submissions and arguments, on and off the record, that the sale in question was an essential liquidation of major assets of the business and yields a sale price, to be utilized for the purpose of valuation (at the time of the sale), subject to the Plaintiffs proof at trial, if any, that value of the remainder of the assets exists, and should be added to the minimum valuation of $2,450,000.00. “At full risk” clearly and unequivocally means that the Plaintiff, upon proof, is the only party that would be eligible to address the value of the business at the time of the sale, and that the Defendant gave up that right, in his bargained for exchange with Plaintiff, for her consent to the sale. It is quite clear that the Plaintiff would not have consented to the sale, but for Defendant’s acquiescence, via counsel, on the record, to being “at full risk” in connection with the value of the business at the time of the sale. The issue before this Court is admissibility of exhibits, and witness testimony, which are not material facts in the case. The very nature of the motion required the court to look at the record to see what the Court and the parties had done on May 4, 2017, and not to evaluate the issue in a summary fashion. Justice Panepinto conferenced this issue with the attorneys, and the parties consented to the sale and the terms on the record. This court cannot determine material facts in limine. An issue of material fact cannot form the basis for granting a motion in limine because it is an “inappropriate device to obtain [summary] relief’ (Downtown Art Co v. Zimmerman, 232 AD2d 270, 270 [1st Dept. 1996]; see also State of New York v. Metz, 241 AD2d 192 [1st Dept. 1998]; Matter of PCK Dev Co., LLC v. Assessor of Town of Ulster, 43 AD3d 539 [2d Dept. 2007]). The Second Department has held that “a motion in limine [is] an inappropriate device to obtain relief in the nature of partial summary judgment,” and the same court has held it to be an abuse of discretion for a trial court to entertain a late motion for summary judgment (converted from a motion in limine) [where the moving party failed to demonstrate good cause for the delay and there was prejudice to the opposing party]. This court is not treating Plaintiffs motion as a request for summary judgment. However, the determination of admissibility of the instant exhibits and witnesses, necessarily requires the court to review the record. It does not require the Court to decide the underlying issue(s) unless the facts and the record are ambiguous. Under those facts, the court could order a hearing upon proper motion. Here, the record is clear and unambiguous to the court. There is nothing to determine regarding the parties’ consent to the sale. The agreement on the record on May 4, 2017, is clear enough that no reasonable basis for a hearing on the matter exists, nor has one been requested by either party. Simply put, the court recapitulated that the Defendant would be stuck with a minimum valuation of the sale price, in exchange for the Plaintiffs consent to the sale, and the parties assented through their attorneys. This was an eleventh hour, bargained for exchange, and its urgency and expeditious nature was promulgated by Defendant, (through his attorney, on the record in court) to the potential detriment of Plaintiff, who was without any information regarding the sale, and the nature of the value of the business up to that point. The terms are clear to this court, based upon the transcript alone of May 4, 2017, and further clarified by the conduct of the parties after the sale. The parties did not engage in any discovery regarding the sale. There was no exchange of documents pertinent to a determination of the value of the business as of the date of the sale. Without the Plaintiffs consent, a sale would have constituted a violation of the automatic orders as provided for in DRL §236(B)(2)(b) and 22 NYCRR 202.16- restraining the parties from the sale of marital assets during the pendency of the action for divorce. Clearly, the consent for the sale of the business was more than a mere accommodation, it was a bargained for exchange. The only issue for the court to determine now, is relevance and the admissibility of exhibits and witness testimony. Therefore, the court makes the following rulings with respect to Plaintiffs motion in limine, regarding proposed exhibits and witnesses: A. Rulings on Proposed Exhibits Exhibit H-J and O-S: These exhibits are the parties’ 2017-2019 joint tax returns. These documents may be introduced for the purposes of counsel fees and to refute Plaintiffs claim for marital waste. Exhibit W: This exhibit is a promissory note and Security Agreement that postdates commencement as well as the sale of the business. It is not relevant and is therefore excluded. Exhibit Y: This is a Surrender, Lease Termination and License Agreement dated 12/11/2017, and is relevant and admissible for the purpose of refuting Plaintiffs claim for marital waste. Exhibit Z: The sale documents are admissible for the sole purpose of proof of the purchase price for the sale of the business. Exhibit BB: Proof of calling in the CNB line of credit may only be admitted for the purpose of refuting Plaintiffs claim for marital waste. Exhibits CC and DP: Brisbane’s report dated 7/11/2017 is relevant and admissible. However, the Brisbane revised report, dated 2/13/18, conducted at the request of Defendant is not relevant, as its valuation is lower than the sale price the Defendant is bound to based on his bargained exchange for consent to the sale. Exhibit EE and FF: “D.A.’s Consulting Memoranda of 10/15/14 and of 8/26/2016 are deemed inadmissible hearsay. Exhibit GG: “Letter from M.L. dated 2/13/2017″ is inadmissible hearsay. B. Rulings on Proposed Witnesses The court will make determinations as to the admissibility of witness testimony at the time of trial and, if requested, upon voir dire of any proffered witness. Plaintiff’s motion in limine as to the exclusion of witnesses is DENIED without prejudice to renew at trial. The denial of a pre-trial motion in limine does not bar the making of the same application during the trial, when the proffered evidence can be evaluated “in context” with other trial evidence (and specific leave to renew may be granted by the court denying a motion in limine) (Grant v. Richard, 222 AD2d 1014 [4 Dept 1995]; Collins v. Willcox, 158 Misc 2d 54 [Sup Ct NY County 1992]; Cooper smith v. Gold, 223 AD2d 572 [2d Dept 1996]). The parties are to be guided by this Decision and Order as to the scope of this trial, and the parameters for testimony. The parties are directed to submit updated witness and exhibit lists at least ten days prior to the next trial date. III. Issues for Trial and Trial Schedule The issues for trial before this Court have been succinctly framed over the course of several years of litigation. There are three issues for this trial: [1] Grounds (for which the parties are expected to submit a short form Order consenting to the Ground of DRL 170 [7], Irretrievable breakdown of the marital relationship at least six months prior to the commencement of the action), [2] The value of, and the marital apportionment of the business, and equitable distribution thereof, and [3] Counsel fees (which the parties have agreed to handle on submission of papers at the conclusion of trial). A trial does not erase the 6 years of pre-trial litigation, issue framing, and final Decisions and Orders of the court. This court will proceed with trial in this matter on July 19, 2022 at 9:30AM. This constitutes a final Decision and Order of the court on Plaintiffs motion in limine. Dated: April 11, 2022
