Court Rejects Motion in Limine as Untimely “Summary Judgment in Disguise”

Posted: August 28, 2026 / Written by: Thomas A. Kissane / Categories Evidence, Preclusion, Trial

Court Rejects Motion in Limine as Untimely “Summary Judgment in Disguise”

On April 21, 2026, Justice Melissa A. Crane of the New York County Commercial Division rejected defendant’s attempt, through a motion in limine, to limit an upcoming trial to its damages, holding that the request amounted to an untimely motion for summary judgment on plaintiff’s affirmative claims. The case is U.S. Pony Holdings, LLC v. Fashion Footwear LLC, Index No. 655022/2022.

The First Department had earlier held that plaintiff (“Pony”) had improperly terminated the parties’ license agreement. It declared the termination void ab initio and held that the agreement remained in full force and effect. Defendant (“Fashion”) argued that the trial should therefore be limited to determining the out-of-pocket damages it incurred as a result of the improper termination by Pony. Pony responded that, because the agreement remained in effect, Pony’s affirmative claims—including claims for guaranteed royalty payments allegedly owed by Fashion under the agreement—also remained for trial. The Court agreed with Pony, noting that Fashion’s earlier summary-judgment motion had never sought dismissal of Pony’s affirmative claims and that neither the trial court nor the First Department therefore had occasion to determine them.

The Court explained: “. . .what Fashion asks for is summary judgment in disguise. Now is too late for summary judgment.” Slip op., p. 5. Accordingly, the trial would include both Fashion’s damages resulting from the improper termination and Pony’s affirmative claims under the license agreement, each subject to the ordinary right of any party to move for judgment as a matter of law at trial CPLR 4401. Id.

The Court also resolved several evidentiary issues. It precluded documents supporting Fashion’s claimed general administrative and loan-interest expenses that had been withheld for years and produced only on the eve of trial, finding the nonproduction willful. Slip op., pp. 2-3. The Court nevertheless permitted Fashion to present testimony concerning those damages and to use genuinely recent bills (which had not existed during discovery), as well as appropriate demonstrative exhibits. Id., p. 3.

Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning motions in limine or evidentiary preclusion.