CE waived and a late SJ

Ofman v Ginsberg, 2011 NY Slip Op 08334 (2nd Dept., 2011)

Although the defendant characterized his motion as one for in limine relief, he argued that the cause of action alleging legal malpractice could not be maintained because of collateral estoppel (see CPLR 3211[a][5]). Notably, he did not raise this objection or defense in either his answer or his original motion to dismiss the complaint (see CPLR 3211[e]). Accordingly, the 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; Brewi-Bijoux v City of New York, 73 AD3d 1112, 1113; Matter of City of New York v Mobil Oil Corp., 12 AD3d 77, 80-81; Rivera v City of New York, 306 AD2d 456, 456-457; Rondout Elec. v Dover Union Free School Dist., 304 AD2d 808, 811) based on a defense that was waived (see CPLR 3211[e]). "[A] motion in limine is an inappropriate substitute for a motion for summary 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 the defendant failed to offer any excuse for the untimely submission of the motion (see CPLR 3212[a]; Brill v City of New York, 2 NY3d 648). As the motion should have been denied, we reverse the judgment and reinstate the complaint (see Brewi-Bijoux v City of New York, 73 AD3d at 1113).