Mendoza v. Highpoint Associates, IX, LLC

Acosta, J. (concurring in part and dissenting in part).

I disagree with the majority’s assessment of the “threshold procedural issue,” namely, whether the preclusion order prevented defendant from submitting evidence in support of its summary judgment motion. Instead, I agree with plaintiff that defendant, by its own failure to comply with the conditional preclusion order, should be barred from offering affirmative evidence as to liability, either at trial or on the motion, regardless of the order’s reference to “at trial.” Indeed, the majority acknowledges that allowing defendant to submit…