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Litigation | MONDAY, DECEMBER 14, 2015 | S11

In Limine Motions
of contract. Thus, “[t]he question is not of as well as damages, and that the defendants 3. Id.
4. 22 N.Y.C.R.R. 202.70, Rule 27.
5. Sadek v. Wesley, 117 A.D.3d 193, 203 (1st Dep’t
admissibility and relevance,” the court clari- would have the opportunity to challenge the 2014); Downtown Art Co. v. Zimmerman, 232 A.D.2d 270,
ied, “but of the form that the relevant and plaintiff’s proofs. “Sampling itself is not proof, 270 (1st Dep’t 1996); Carrasquillo v. New York City Dep’t
« Continued from page S5
admissible evidence will take at trial.”21
but merely a vehicle to present evidence,” of Educ., 104 A.D.3d 516, 516 (1st Dep’t 2013); A.R. Med.
of contract in a case arising out of the defen- The court acknowledged that, on the mer- the court emphasized.26
Rehabilitation, P.C. v. GEICO Gen. Ins. Co., 39 Misc. 3d
dants’ underwriting of complex residential its, there were factual issues still in dispute; The strategy employed in Countr ywide 1206[A], 1206A (Civ. Ct. Bronx Co. 2013).
mortgage-backed securities. Given the com- however, it rejected the contention that these seems well suited to cases involving com- 6. Charter Sch. for Applied Techs. v. Bd. of Educ. for City Sch. Dist. of City of Buffalo, 105 A.D.3d 1460, 1464
plicated structure of the inancial instruments were “threshold issues” that needed to be plicated scientiic or econometric issues. As (4th Dep’t 2013) (“Defendant’s motion to preclude plain-
at issue, each comprised of hundreds of indi- resolved before addressing the plaintiff’s in another New York trial court noted, “[i]n rela- tiffs from introducing any evidence with respect to dam-
vidual loans, the plaintiff faced certain practi- limine motion.“Defendants do not argue how tion to the conduct of the civil litigation, there ages was ‘the functional equivalent of a motion for par-
22 tial summary judgment.’”); Scalp & Blade v. Advest, 309
cal challenges in terms of proving its case at resolution, or non-resolution, of any of their is an evolving preference for early presenta- A.D.2d 219, 224 (4th Dep’t 2003); Rondout Elec. v. Dover
trial with a modicum of eficiency. Thus, “well purported issues will be affected by a statisti- tion [of issues concerning scientiic evidence] Union Free Sch. Dist., 304 A.D.2d 808, 810 (2d Dep’t 2003); Avail Shipping v. Shero Shipping, No. 600112/2009, 2015
in advance of the pre-trial conference date,” cally signiicant sampling of the securitizations because scientiic issues may involve a time- WL 1158556, at *1-3 (Sup. Ct. N.Y. Co. March 12, 2015).
the plaintiff brought a “permissive” motion in at issue, nor do Defendants attempt to link the consuming analysis of an expert’s methodol- 7. Hefti, 2014 WL 2990389 at *1.
limine seeking a determination that it could list of issues with their other arguments,” the ogy and the pertinent literature.”27 In cases 8. Id.
use statistical sampling as evidence in sup- court wrote. “Defendants simply state that if involving complicated technical issues, there 9. Speed v. Avis Rent-A-Car, 172 A.D.2d 267 (1st Dep’t
port of its claims.18 (A “permissive” motion Plaintiff does not prevail upon all of the list- is a signiicant potential beneit in knowing, 1991) (citing Carroll v Nunez, 137 A.D.2d 911, 913 (3d
is one made by the party seeking to offer ed issues ‘[the plaintiff’s] proposal will not well before trial, whether a particular means Dep’t 1988) (“A decision regarding the admissibility of evidence . is more properly made at trial when its
relevance, or lack of relevance, may be determined in
the evidence and asks for a determination work.’”23 Because the defendants offered no of proving claims or defenses will be accept- context.”); Grant v. Richard, 222 A.D.2d 1014 (4th Dep’t
that the evidence in question is admissible.19)
nexus between the disputed factual issues and able to the trial judge. And, even if the court 1995).
Rejecting the defendants’ argument that the the form of evidence proposed by the plaintiff, declines to decide an early permissive in 10. Schron, 32 Misc.3d at 234.
motion was premature, the court explained there was no need to resolve the factual issues limine motion on the basis that it’s premature, 11. Id. at 236-39.
that “[w]hile the majority of motions in limine before ruling on the plaintiff’s motion in limine.
the early motion may help to educate the trial 12. Id. at 237.
13. Id. at 238 (quoting R.M. Realty Holdings v. Moore,
are made close to or during trial, neither New The defendants also raised concerns about judge about important issues concerning the 64 A.D.3d 434, 437 (1st Dep’t 2009)).
York statute nor code prevents a party from the proposed sampling methodology itself. ultimate conduct of trial.
14. Id.
bringing a motion as their litigation strategy But, inding that the proposed methodology In sum, although the common wisdom is 15. Schron, 20 N.Y.3d at 436 (quoting Greenield v.
dictates. Neither does New York statute or satisied the well-known Fr ye standard for that New York courts are reluctant to grant Philles Records, 98 N.Y.2d 562, 569 (2002)).
16. Hudson-Port Ewen Assoc., L.P. v. Chien Kuo, 165
code prevent the court from deciding that admissibility of scientiic expert evidence,24 motions in limine made in the early stages of A.D.2d 301, 303 (3d Dep’t 1991).
17. Evans v. Famous Music, 1 N.Y.3d 452, 460 (2004);
motion.”20 The court also distinguished the the court explained that the defendants’ criti- a case, case law suggests that there are some Fed. Ins. Co. v. Ams. Ins. Co., 258 A.D.2d 39, 44 (1st Dep’t
line of New York cases cited by the defendants cisms went to the weight of the evidence, situations when such a motion is appropriate. 1999).
to the effect that rulings on the admissibil- not its admissibility. “[W]hile Plaintiff is per- Schron and Countr ywide represent two such 18. Countrywide, 30 Misc.3d at 1201A.
ity of evidence should be made at or near mitted to present evidence as it so chooses, situations, and forward-thinking counsel may 19. 4 N.Y. Prac., Com. Litig. in New York State Courts
trial because, at that point, the relevance of and the court will permit Plaintiff to present well be able to identify and pursue others §38:3 (4th ed.).
the challenged evidence can be determined evidence of its claims through its chosen and thereby achieve a tactical advantage by 20. Countrywide, 30 Misc.3d at 1201A. 21. Id.
in context with all the other evidence. The sampling methodology, the court does not obtaining an early ruling on a key issue.
22. Id.
court observed that there was no question necessarily endorse the Plaintiff’s method as
23. Id.
• ••
24. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
that the facts the plaintiff sought to prove 25 better or worse than any other method.” The
•••••••••••••••••••••••••• 25. Countrywide, 30 Misc.3d at 1201A.
through statistical sampling were relevant court noted that the plaintiff would still be 1. State v. Metz, 241 A.D.2d 192, 198 (1st Dep’t 1998).
26. Id.
to the plaintiff’s claims for fraud and breach
required to prove each element of its claims,
2. See Hefti v. Brand Union, No. 150832/2014, 2014 WL 2990389, at *1 (Sup. Ct. N.Y. Co. 2014).
27. Drago v. Tishman Constr., 4 Misc.3d 354, 361 (Sup.
Ct. N.Y. Co. 2004).

Insurance Rights
that the legislature had accepted those argu- the modern American economy, merg- follow the majority pro-policyholder rule on
ments in codifying §520 as part of California’s ers, acquisitions, and sales are part of assignment.

insurance law. The court therefore overruled corporate life . . To the extent that insur- Corporate Counsel and Risk Managers
« Continued from page S9
Henkel to the extent it was inconsistent with ance protection (for past but possibly should consider Fluor and similar cases,
Fluor argued that even if its case were §520.
unknown losses) may be more freely not only because they impact planning for
factually indistinguishable from Henkel, the While Fluor grounded its opinion on the assigned as part of corporate recombi- any type of corporate restructuring, but also
court in Henkel had failed to consider Insur- legislature’s intent, it expressly endorsed the nations, this lowers transaction costs and because they impact whether companies
ance Code §520, a provision that was irst public policies behind the legislature’s deci- facilitates economic activity and wealth should buy occurrence-based or claims-made
enacted in 1872. Section 520 provides that sion. Speciically, Fluor stated:
enhancement.
policies. Under Fluor, occurrence-based poli-
“[a]n agreement not to transfer the claim 61 Cal. 4th 1175, 1218-19. Accordingly, while cies potentially could be assigned and applied
of the insured against the insurer after a The “postloss exception” to the general some might interpret Fluor as a limited hold- to IBNR claims, and companies should keep

loss has happened, is void if made before rule restricting assignability . is itself ing interpreting a previously forgotten law, this risk-management tool in mind.
the loss . .” The court began its analysis a venerable rule that arose from experi- the reasoning and force of Fluor appears As has happened in other areas of insur-
by focusing on whether the phrase “after a ence in the world of commerce. The rule designed to convince other courts to turn ance recovery, the now reversed rule in Hen-
loss has happened” referred to the bodily has been acknowledged as contributing the majority pro-assignment rule into the only kel was the product of insurance industry
injury suffered by a third party or after the to the eficiency of business by minimiz- assignment rule.
overreach, putting their short-term inancial
policyholder incurred a direct loss by vir- ing transaction costs and facilitating eco- Important Considerations for Insurance interest before the obvious intent of their
tue of entry of judgment, or the inalization nomic activity and wealth enhancement. Rights and Policy Review. Although Fluor insurance policies or the good of their poli-
of a settlement, ixing a sum of money due A major rationale for commercial insur- re-established the majority rule regarding cyholders. Fluor is a welcome return to a
on the claim. Interestingly, the court enter- ance is to facilitate economic activity and assignment of policies in California, note pro-business rule in this area, and one that

tained almost the exact same arguments it growth by providing risk management that other states, such as Indiana, Hawaii, will enhance the ability to conduct useful
had rejected in Henkel, but in Fluor it found
protection for economic actors . . In
Oregon, Texas, and Louisiana, do not clearly
corporate transactions.

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