, they nonetheless argue Plaintiffs motion is an improper summary judgment motion. "[A] motion in limine is an inappropriate substitute for a motion for summary judgment" (Ofman v. Ginsberg, 89 A.D.3d 908, 909 [Second Dept. 2011]; see also Scalp & Blade. Inc. v. Advest Inc., 309 A.D.2d 219, 224 [Fourth Dept. 2003]). Defendants argue the appropriate time to address Plaintiffs concerns on this point is at trial, if and when the need arises (see Speed v. Avis Rent-A-Car, 172 A.D.2d 267, 268 [First Dept. 1991], "a decision regarding the admissibility of evidence... is more properly made at trial when its relevance, or lack of relevance, may be determined in context").
Kings Plaza, LLC, 171 A.D.3d 822, 823, 97 N.Y.S.3d 174 [failure of plaintiff to establish for workers’ compensation a causally related injury from alleged accident involving an elevator]; Emanuel v. MMI Mech., Inc., 131 A.D.3d 1002, 1003, 16 N.Y.S.3d 285 [same]; McRae v. Sears, Roebuck & Co., 2 A.D.3d 419, 767 N.Y.S.2d 799 [same, but as to a ladder]; Rigopolous v. American Museum of Natural History, 297 A.D.2d 728, 747 N.Y.S.2d 566 [plaintiff collaterally estopped from litigating a Labor Law § 240 cause of action, where the Workers’ Compensation Board had previously determined that the accident had occurred on the ground and did not involve elevation]). Apart from the foregoing, collateral estoppel is included in the menu of defenses that, if not raised in an answer as an affirmative defense or in a pre-answer motion to dismiss, is waived (see CPLR 3211[a][5] ; [e]; Onate v. Fernandez, 184 A.D.3d 725, 727, 125 N.Y.S.3d 451 ; Browne v. Board of Educ., 122 A.D.3d 563, 996 N.Y.S.2d 96 ; Ofman v. Ginsberg, 89 A.D.3d 908, 909, 933 N.Y.S.2d 103 ). The defendants did not assert the doctrine as an affirmative defense in their answer to the second amended complaint.
Apart from the foregoing, collateral estoppel is included in the menu of defenses that, if not raised in an answer as an affirmative defense or in a pre-answer motion to dismiss, is waived (see CPLR 3211[a][5]; [e]; Onate v Fernandez, 184 A.D.3d 725, 727; Browne v Board of Educ., 122 A.D.3d 563; Ofman v Ginsberg, 89 A.D.3d 908, 909). The defendants did not assert the doctrine as an affirmative defense in their answer to the second amended complaint.
We agree with the defendants' contention that the plaintiff's pretrial application, characterized as one for in limine relief, was the functional equivalent of an untimely motion for summary judgment on the issue of liability (seeOfman v. Ginsberg, 89 A.D.3d 908, 909, 933 N.Y.S.2d 103 ; West Broadway Funding Assoc. v. Friedman, 74 A.D.3d 798, 798, 901 N.Y.S.2d 548 ; Marshall v. 130 N. Bedford Rd. Mount Kisco Corp., 277 A.D.2d 432, 717 N.Y.S.2d 227 ; Downtown Art Co. v. Zimmerman, 232 A.D.2d 270, 648 N.Y.S.2d 101 ). "[A] motion in limine is an inappropriate substitute for a motion for summary judgment" ( Rondout Elec. v. Dover Union Free School Dist., 304 A.D.2d 808, 810–811, 758 N.Y.S.2d 394 ).
Since Cortez's motion was made after issue was joined, the Supreme Court correctly determined that it should be treated as a motion for summary judgment pursuant to CPLR 3212 (see JP Morgan Chase Bank, N.A. v. Johnson, 129 A.D.3d 914, 915, 10 N.Y.S.3d 446 ; Wesolowski v. St. Francis Hosp., 108 A.D.3d 525, 526, 968 N.Y.S.2d 181 ; Kavoukian v. Kaletta, 294 A.D.2d 646, 646, 742 N.Y.S.2d 157 ). Moreover, the court properly denied the motion as untimely in view of Cortez's failure to show “good cause” for not serving the motion within 120 days after the filing of the note of issue (CPLR 3212[a] ; see Brill v. City of New York, 2 N.Y.3d 648, 652, 781 N.Y.S.2d 261, 814 N.E.2d 431 ; Hsiao Yung Wang v. Chei Fong Lee, 110 A.D.3d 1060, 974 N.Y.S.2d 256 ; Ofman v. Ginsberg, 89 A.D.3d 908, 908, 933 N.Y.S.2d 103 ). The parties' remaining contentions need not be reached in light of our determination.
Furthermore, the Supreme Court improvidently exercised its discretion in granting those branches of the City's motion in limine which were to preclude the plaintiffs from presenting evidence, including the expert testimony of Dr. Irving Friedman, that, as a result of the accident, the injured plaintiff acquired a "C-difficile" infection, her pre-existing Crohn's disease was exacerbated, and she suffered psychological injury. Contrary to the plaintiffs' contention, the motion was not an untimely motion for summary judgment, since the motion was seeking to preclude certain evidence as inadmissible (compare Matter of Singer, 99 AD3d 802; Ofman v Ginsberg, 89 AD3d 908, 909; Brewi-Bijoux v City of New York, 73 AD3d 1112). However, the trial court's decision to exclude certain testimony by Dr. Friedman on the ground that the plaintiffs' expert disclosure pursuant to CPLR 3101(d) failed to include "the substance of the facts and opinions upon which Dr. Friedman is expected to testify" was in error, since Dr. Friedman's report did state the basis of his opinions, albeit tersely.
With regard to that branch of the City's motion which was for summary judgment, it was untimely made and the Supreme Court improvidently exercised its discretion in considering that branch, since the City failed to offer any excuse for its failure to timely move for summary judgment ( seeCPLR 3212[a]; Brill v. City of New York, 2 N.Y.3d 648, 781 N.Y.S.2d 261, 814 N.E.2d 431;Ofman v. Ginsberg, 89 A.D.3d 908, 909, 933 N.Y.S.2d 103;Brewi–Bijoux v. City of New York, 73 A.D.3d 1112, 1113, 900 N.Y.S.2d 885). In any event, since there are factual disputes regarding the precise location of the defect that allegedly caused the plaintiff's fall and whether the alleged defect is designated on the Big Apple map, the question should be resolved by the jury ( see Mora v. City of New York, 103 A.D.3d 610, 959 N.Y.S.2d 264;Brown v. City of New York, 90 A.D.3d 591, 933 N.Y.S.2d 895;Bradley v. City of New York, 38 A.D.3d 581, 582, 832 N.Y.S.2d 257;Cassuto v. City of New York, 23 A.D.3d 423, 424, 805 N.Y.S.2d 580).
The Supreme Court also properly directed the dismissal of the breach of contract cause of action because it was duplicative of the legal malpractice cause of action ( seeCPLR 3211[a][7]; Ofman v. Ginsberg, 89 A.D.3d 908, 909, 933 N.Y.S.2d 103;Conklin v. Owen, 72 A.D.3d 1006, 900 N.Y.S.2d 118;Laruccia v. Forchelli, Curto, Schwartz, Mineo, Carlino & Cohn, 295 A.D.2d 321, 322, 744 N.Y.S.2d 335).
With respect to the judgment in appeal No. 2, we reject defendant's contention that the court erred in denying its motion in limine prior to the trial on damages. Defendant's motion to preclude plaintiffs from introducing any evidence with respect to damages was “ ‘the functional equivalent of a motion for partial summary judgment’ ” ( Scalp & Blade v. Advest, Inc., 309 A.D.2d 219, 224–225, 765 N.Y.S.2d 92;see Rondout Elec. v. Dover Union Free School Dist., 304 A.D.2d 808, 811, 758 N.Y.S.2d 394), which was untimely ( see Ofman v. Ginsberg, 89 A.D.3d 908, 909, 933 N.Y.S.2d 103). Defendant failed to provide “a satisfactory explanation for the untimeliness” ( Brill v. City of New York, 2 N.Y.3d 648, 652, 781 N.Y.S.2d 261, 814 N.E.2d 431), and thus the court properly denied the motion.
“ ‘[A] motion in limine is an inappropriate substitute for a motion for summary judgment’ ” ( Brewi–Bijoux v. City of New York, 73 A.D.3d 1112, 1113, 900 N.Y.S.2d 885, quoting Rondout Elec. v. Dover Union Free School Dist., 304 A.D.2d 808, 810–811, 758 N.Y.S.2d 394;see Ofman v. Ginsberg, 89 A.D.3d 908, 909, 933 N.Y.S.2d 103). Since the movants failed to offer any excuse for their failure to timely move for summary judgment with respect to whether the circumstances surrounding the sale, and the co-trustees' awareness and ratification of the sale, evidenced self-dealing ( seeCPLR 3212[a]; Brill v. City of New York, 2 N.Y.3d 648, 781 N.Y.S.2d 261, 814 N.E.2d 431), such failure warranted the denial of the motion in its entirety without consideration of the merits thereof ( see Miceli v. State Farm Mut. Auto. Ins. Co., 3 N.Y.3d 725, 786 N.Y.S.2d 379, 819 N.E.2d 995;Rivera v. City of New York, 306 A.D.2d 456, 762 N.Y.S.2d 258).