“A court considering a motion in limine may reserve judgment until trial so that the motion is placed in the appropriate factual context.”
How later courts described this case
- “A court considering a motion in limine may reserve judgment until trial so that the motion is placed in the appropriate factual context.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------X
ROSARY BERTUZZI,
Plaintiff, MEMORANDUM & ORDER
17-CV-4256 (JS)(ARL)
-against-
COPIAGUE UNION FREE SCHOOL
DISTRICT; BOARD OF EDUCATION OF
COPIAGUE UNION FREE SCHOOOL
DISTRICT; DR. KATHLEEN BANNON;
TODD ANDREWS; and MICHELLE
BUDION,
Defendants.
--------------------------------X
APPEARANCES
For Plaintiff: Jason A. Gilbert, Esq.
Alexander R. Gilbert, Esq.
Howard E. Gilbert, Esq.
Gilbert Law Group
425 Broadhollow Road, Suite 405
Melville, New York 11747
For Defendants: Deanna L. Collins, Esq.
Caroline B. Lineen, Esq.
Karen C. Rudnicki, Esq.
Lewis R. Silverman, Esq.
Silverman & Associates
445 Hamilton Avenue, Suite 1102
White Plains, New York 10601
SEYBERT, District Judge:
On March 3, 2025, Defendants Copiague Union Free School
District, Board of Education of Copiague Union Free School
District, Dr. Kathleen Bannon, Todd Andrews, and Michele Budion
(collectively, “Defendants”) filed a Motion in Limine seeking
eight separate forms of pre-trial relief. (Defs.’ MIL, ECF No.
141; Defs.’ Support Memo, ECF No. 143.) On March 28, 2025, the
Court issued a Memorandum and Order (ECF No. 152) addressing two
of the eight requests.
Presently before the Court are Defendants’ remaining six
requests. In particular, Defendants seek a Court order:
(a) precluding evidence “relating to any request for a
non-teaching assignment accommodation” (“Request Three”);
(b) dismissing Defendant Michelle Budion, referred to in
Plaintiff’s Motion as “Ms. Passeggiata” (“Request Four”);
(c) permitting the Court to determine the amount of lost wages,
benefits, and pension Plaintiff is entitled to, if any (“Request
Five”); (d) precluding Plaintiff from offering evidence of alleged
disparate treatment and retaliation, because those claims have
been dismissed (“Request Six”); (e) precluding Plaintiff’s
witnesses from testifying as experts due to Plaintiff’s failure to
make any expert disclosures (“Request Seven”); and (f) precluding
Plaintiff’s husband, John Bertuzzi, from testifying at trial as he
“does not have personal, firsthand knowledge of the Plaintiff’s
and Defendant’s discussions or interactions regarding her requests
for accommodations and the District’s response to such requests”
(“Request Eight”). For the following reasons, Defendants’
Requests are GRANTED in part and DENIED in part.
ANALYSIS
I. Request Three
Defendants’ Request Three asks the Court to preclude
Plaintiff from introducing evidence at trial relating to “any
request for a non-teaching assignment accommodation” because such
request was not adequately plead in the operative Amended
Complaint, and because providing Plaintiff with a non-teaching
position would not permit her to perform the “essential functions”
of her job as a teacher. (Defs.’ Support Memo at 12-13.) Plaintiff
argues, in response, that this evidence need not be precluded
because: (1) Plaintiff alleged in her Amended Complaint that
Defendants failed to engage in the interactive process, which would
have required Defendants to explore non-teaching accommodations;
and (2) there is ample evidence in the record indicating there
were non-teaching roles that Plaintiff was able to perform and
requested to perform. (Pl.’s Opp’n at 26-28 (referring to emails
among the parties and Plaintiff’s deposition testimony).)
The Amended Complaint alleges, inter alia, Defendants
failed to reasonably accommodate Plaintiff under the Americans
with Disabilities Act (“ADA”) and New York State Human Rights Law
(“NYSHRL”). (See generally, Am. Compl., ECF No. 26). The law is
clear that “a reasonable accommodation may include reassignment to
a vacant position.” Tillman v. Verizon New York, Inc., 118 F. Supp.
3d 515, 538 (E.D.N.Y. 2015) (citing Thompson v. N.Y. City Dep’t of
Prob., 348 F. App’x. 643, 645 (2d Cir. 2009) (further citations
and quotation marks omitted). However, reassignment to such
position is not required where it would “eliminate [an employee’s]
essential job functions.” Medlin v. Rome Strip Steel Co., 294 F.
Supp. 2d 279, 291 (N.D.N.Y. 2003). While the Court is skeptical
whether Plaintiff can prove the existence of non-teaching
positions which would not have eliminated her essential job
functions as a classroom foreign language teacher, in the absence
of a full record concerning the essential job functions of
Plaintiff’s role and the vacant positions which might have been
available, the Court declines to preclude Plaintiff from putting
forth any such proof at trial. Accordingly, Defendants’ Motion in
Limine as to Request Three is DENIED without prejudice to renew at
trial, if appropriate.
II. Request Four
Defendants’ Request Four asks the Court to dismiss
Ms. Passeggiata (identified in the Amended Complaint and case
caption as Michelle Budion) from this action because she did not
have “anything to do with the determination of whether Plaintiff
should be assigned a single classroom.” (Defs.’ Support Memo at
13.) This request is not a proper in limine motion because it
does not seek to obtain an evidentiary ruling, but rather
“constitutes an express substantive challenge to one of the issues
set for trial.” Taylor v. Rogich, No. CV 11-934, 2016 WL 11493799,
at *2 (E.D.N.Y. Apr. 26, 2016). Indeed, in limine motions are
intended to “aid the trial process by enabling the Court to rule
in advance of trial on the relevance of certain forecasted
evidence.” Id. (citing Palmieri v. Defaria, 88 F.3d 136, 141 (2d
Cir. 1996)). “In limine motions are generally not the appropriate
vehicle for effecting dismissal.” Weiss v. La Suisse, Societe
D'Assurances Sur La Vie, 293 F. Supp. 2d 397, 403 (S.D.N.Y. 2003).
Accordingly, the Court declines to entertain Defendants’
substantive argument as to a trial issue – that is, whether Ms.
Passeggiata may be liable to Plaintiff under the ADA and/or NYSHRL.
Plaintiff’s Motion in Limine as to Request Four is therefore
DENIED.
III. Request Five
Defendants’ Request Five asks the Court to determine the
amount of damages, if any, Plaintiff is entitled to for lost wages,
lost benefits, and lost pension. The Court has already determined
Plaintiff is precluded from seeking such damages at trial. (See
Memorandum and Order, ECF No. 152.) Accordingly, Defendants’
Motion in limine as to Request Five is DENIED AS MOOT.
IV. Request Six
Defendants’ Request Six asks the Court to preclude
Plaintiff “from offering evidence of her alleged disparate
treatment and/or retaliation” claims which have been dismissed.
(Defs.’ Support Memo at 18-19.) In particular, Defendants request
the Court limit Plaintiff’s ability to offer evidence concerning,
inter alia, Plaintiff’s classroom management and discipline, the
number of special needs or “disciplinary problem” students
assigned to her classroom, and Plaintiff’s alleged fall at school
prior to the 2017-2018 school year. (Id.) Defendants claim such
evidence is irrelevant to the remaining failure to accommodate
claim and, if admitted, would lead to jury confusion. (Id.)
Plaintiff agrees with Defendants that evidence “solely”
related to disparate treatment and retaliation claims is
irrelevant and therefore should not be introduced (see Pl.’s Opp’n
at 22-23) (“Plaintiff does not contest defendants’ position that
evidence which is solely relevant to plaintiff’s past claims for
disparate treatment and/or retaliation is not relevant to
plaintiff’s failure to accommodate claim”). In particular,
Plaintiff concedes that “class rosters, communications regarding
classroom management and/or student discipline will be precluded
as irrelevant.” (Id.) Plaintiff argues, however, that other
evidence, such as “Plaintiff’s classroom assignments over the
years, use of sick leave, and ability to perform the essential
functions of her position with or without accommodation” should be
permitted. (Id.)
In light of the parties’ agreement regarding the
inadmissibility of class rosters, communications regarding
classroom management, and/or student discipline, Defendant’s
Request Six is GRANTED insofar as it seeks preclusion of such
evidence. Moreover, while the Court is not convinced at this
juncture that the other categories of evidence discussed in
Defendants’ Request Six are relevant to the remaining claim at
issue, the Court reserves decision regarding their admissibility.
New Am. Mktg. FSI LLC v. MGA Ent., Inc., 187 F. Supp. 3d 476, 481
(S.D.N.Y. 2016) (“A court considering a motion in limine may
reserve judgment until trial so that the motion is placed in the
appropriate factual context.”). Therefore, to the extent Request
Six seeks to preclude evidence other than class rosters,
communications regarding classroom management, and/or student
discipline, such Request is DENIED. If any such evidence is
introduced at trial, the party seeking to introduce such evidence
bears the responsibility for substantiating its relevance and
compliance with the Federal Rules of Evidence.
V. Request Seven
Defendants’ Request Seven seeks to preclude three of
Plaintiff’s witnesses – Dr. Tzou, Dr. Milonas, and Dr.
Mermelstein – from testifying as experts due to Plaintiff’s
failure to disclose them as experts in accordance with Federal
Rule of Evidence 26(a)(2). (Defs.’ Support Memo at 20). Plaintiff
does not oppose or otherwise respond to this Request. (See Pl.’s
Opp’n in toto). The Court therefore deems Plaintiff’s Request
Seven unopposed. Felske v. Hirschmann, No. 10-CV-8899, 2012 WL
716632, at *3 (S.D.N.Y. Mar. 1, 2012) (“Plaintiff effectively
concedes a defendant’s arguments by his failure to respond to
them”); see also Williams v. Miracle Mile Properties 2 LLC,
No.20-CV-3127, 2024 WL 3878826, at *5 (E.D.N.Y. June 21, 2024),
report and recommendation adopted, 2022 WL 22866394 (E.D.N.Y. July
15, 2024) (collecting cases supporting same).
In light of Plaintiff’s non-opposition to Defendants’
Request Seven, and Plaintiff’s failure to make any expert
disclosures in accordance with Federal Rule of Civil Procedure
(“Rule”) 26, Plaintiff is precluded from offering expert testimony
from the aforementioned witnesses at trial. See Franz v. New
England Disposal Techs., Inc., No. 10-CV-201, 2011 WL 5443856, at
*3 (W.D.N.Y. Nov. 9, 2011) (“[I]n order for doctor to testify
concerning opinions not gleaned from his own diagnoses and
treatment of the plaintiff, he must have been designated an expert
witness and must have prepared the necessary expert report.”)
(citing Motta v. First Unum Life Ins. Co., No. 09-CV-3674, 2011 WL
4374544, at *4 (E.D.N.Y. Sept. 19, 2011)). Accordingly,
Defendants’ Motion in Limine as to Request Seven is GRANTED.
VI. Request Eight
Defendants’ Request Eight seeks an order of the Court
precluding Plaintiff’s husband, John Bertuzzi (“Mr. Bertuzzi”),
from testifying as a fact witness in this case because he does not
have “personal, first hand knowledge of the Plaintiff’s and
Defendant’s discussions or interactions regarding her requests for
accommodations and the District’s response to such requests.”
(Defs.’ Support Memo at 20-21.) Defendants further argue Mr.
Bertuzzi should be precluded from testifying because Plaintiff
never “identified or disclosed” him as a fact witness in accordance
with Rules 26 and 27. (Id. at 21.) In opposition, Plaintiff
argues Mr. Bertuzzi should be permitted to testify as to his lived
experience with Plaintiff, including the pain and distress she
experienced, how Defendants’ failure to accommodate affected
Plaintiff physically, mentally, and financially, and how he
accommodates Plaintiff’s disabilities in the home. (Pl.’s Opp’n
at 31-32.) Plaintiff did not respond to Defendants’ arguments
regarding Plaintiff’s failure to disclose Mr. Bertuzzi as a witness
in accordance with Rules 26 and 37.
Rule 37(c)(1) provides that any
“party that without substantial justification
fails to disclose information required by Rule
26(a) . . . is not, unless such failure is
harmless, permitted to use as evidence at a
trial . . . any witness . . . not so
disclosed.” Fed. R. Civ. P. 37(c)(1).
Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006). “An
omission or delay in disclosure is harmless where there is ‘an
absence of prejudice’ to the offended party.” Lujan v. Cabana
Mgmt., Inc., 284 F.R.D. 50, 68 (E.D.N.Y. 2012). Preclusion of a
witness for failure to disclose is a “‘harsh remedy’ that ‘should
only be imposed in rare situations.’” Id. (citing Izzo v. ING Life
Ins. & Annutity Co., 235 F.R.D. 177, 186 (E.D.N.Y. 2005)) (further
citations omitted). Here, in the absence of any allegation of
prejudice by Defendants, the Court, in its discretion, declines to
prohibit Mr. Bertuzzi from testifying at trial pursuant to Rules
26 and 37. Moreover, the Court declines to preclude Mr. Bertuzzi
from testifying based upon Plaintiff’s description of Mr.
Bertuzzi’s expected testimony, which bears some relevance to the
remaining claim to be tried. Accordingly, Defendants’ Motion in
Limine as to Request Eight is DENIED; however, Defendants may renew
their evidentiary objections to Mr. Bertuzzi’s testimony at trial,
if appropriate.
CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED:
Plaintiff’s Motion in Limine as to:
I. Request Three is DENIED;
II. Request Four is DENIED;
III. Request Five is DENIED;
IV. Request Six is GRANTED in part and DENIED in part;
V. Request Seven is GRANTED;
VI. Request Eight is DENIED; and
VII. In accordance with this Order, Defendants may renew certain
of their objections at trial.
IT IS FURTHER ORDERED, in accordance with the Court’s Rulings on
Defendants’ Motion in Limine, including its prior Order granting
Defendants’ Request One and Two (see ECF No. 152), the Parties
shall submit a revised Joint Proposed Verdict Sheet by no later
than April 4, 2025.
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: April 2, 2025
Central Islip, New York