Plaintiff moves in limine to preclude the introduction at trial of seven photographs (NY St Cts Filing [NYSCEF] Doc Nos. 321—327) taken by counsel for Defendant Adam Plotch during a court-ordered inspection of the original loan documents, arguing the images are irrelevant to the only material point, Plaintiff's standing at commencement. The motion was noticed for August 4, 2025, pursuant to a Short Form Order that set a briefing cadence; opposition and reply were timely exchanged.

Having reviewed Plaintiff's moving affirmation, Defendant's opposition, and Plaintiff's reply, the Court denies preclusion for the reasons that follow.

I. Facts and Procedural Background

This mortgage foreclosure concerns the premises at 34 Harbour Court, Staten Island, New York. Plaintiff seeks, inter alia, to bar use of photographs taken by Defendant's counsel on October 2, 2019, at the offices of Plaintiff's then-counsel, depicting the condition of the Consolidated Note and its allonge at the time of inspection, five years after suit commenced on [*2]July 16, 2014. Plaintiff characterizes the images as "entirely irrelevant" because standing is "measured from the date of commencement," and because the collateral file resided with different counsel at inception and, years later, was separated for scanning when transmitted to current counsel.

Plaintiff further proffers corporate and counsel affidavits: (i) Wells Fargo representatives Miranda Barnes (June 12, 2020) and Jaci M. Stevens (August 30, 2023) aver that on June 9, 2014 Wells Fargo sent the original Consolidated Note to Frenkel Lambert and that, consistent with bank procedures, the allonge was "firmly affixed" when the file was transmitted; (ii) Frenkel Lambert employee Kyra Schwartz (affidavits of Nov. 14, 2019; Mar. 19, 2020; Aug. 3, 2023) attests her firm received the collateral file on June 10, 2014, possessed the original Consolidated Note at commencement, and would commence foreclosures only where the relevant allonge was affixed. Plaintiff also notes visible staple marks on the Note and allonge, said to "evidence prior attachment."

Defendant opposes, emphasizing that the Appellate Division, Second Department, reversed a prior grant of summary judgment "precisely because Plaintiff failed to prove the note had an allonge firmly affixed thereto," remanding for fact-finding. Defendant recounts that, pursuant to discovery orders (NY St Cts Filing [NYSCEF] Doc No. 268, followed by NY St Cts Filing [NYSCEF] Doc No. 269), counsel inspected the original documents and observed the note "had no allonge firmly attached thereto," and argues the photographs memorializing that inspection are probative and should be received. Defendant relies on Second Department authority directing production of the original note and endorsements in analogous circumstances and, where appropriate, authorizing adverse inferences at trial for non-production; while those decisions speak to discovery, Defendant invokes them to refute the notion that the post-commencement appearance of the original instruments is categorically irrelevant to affixation at inception.

Plaintiff replies that discoverability is broader than admissibility; "material and necessary" discovery (CPLR § 3101 [a]) does not automatically translate into trial relevance, and the relevant moment for standing is commencement. Plaintiff adds that the October 2019 inspection occurred at a firm that was not counsel at commencement and after the file was separated for scanning, again underscoring temporal and custodial disconnects.

II. Conclusions of Law

A motion in limine permits a pretrial ruling to exclude anticipated inadmissible or immaterial proof; only relevant evidence is admissible. "Evidence is relevant if it has any tendency in reason to prove the existence of any material fact," and admission of irrelevant matter may warrant reversal. The parties also agree, and the authorities cited in their papers reflect, that in a foreclosure action "a plaintiff's standing is measured from the date of commencement," and that possession of the note at that time is dispositive on standing.

The irrelevance argument overreads the temporal maxim. That standing is assessed as of commencement does not, render all post-commencement physical evidence of the instruments non-probative. The photographs at issue depict the state of the Consolidated Note and allonge at the October 2, 2019 inspection; they neither prove nor disprove affixation at inception, but they can, in context, make that historical proposition more or less probable. Under the relevance standard quoted by Plaintiff, requiring only "any tendency in reason" to affect a material fact, the [*3]images clear the threshold.

Defendant's opposition persuasively situates the images within the very controversy the Second Department returned for trial, whether the allonge was "firmly affixed" at commencement. While the authorities Defendant cites principally address compelled production and discovery management, they underscore that the appearance of the original note and any allonge during discovery may bear on affixation and, thus, on standing. That proposition collides with Plaintiff's categorical irrelevance theory.

To be sure, Plaintiff has marshaled substantial counter-proof. The Barnes and Stevens affidavits recount transmittal of the original Note to Frenkel Lambert on June 9, 2014 with the allonge "firmly affixed," and the Schwartz affidavits assert receipt on June 10, 2014, possession at commencement, and office practice to commence only where the allonge is attached. Plaintiff also points to staple marks said to corroborate prior attachment and to chain-of-custody vicissitudes (change of counsel; separation for scanning) that may explain the 2019 condition. These contentions are weight arguments for the fact-finder, not bases for wholesale preclusion.

Nor does the record support the sweeping relief sought. Plaintiff's own authorities recognize that the touchstone is relevance; and on this record, the photographs are not so divorced from the triable issue that they should be interdicted from the jury (or the Court, if non-jury) altogether. The Court is confident that chain-of-custody questions, the custodial gap between Frenkel Lambert and Reed Smith, and the claimed removal of staples for scanning will be explored through testimony and cross-examination; any inferential leap Defendant invites from a 2019 image to a 2014 condition may be accepted or rejected as the evidence warrants.

A. Counsel as Photographer and the Advocate-Witness Rule

One caveat bears emphasis. The record makes clear that the photographs were taken by Defendant's counsel. Any use of the images at trial will require proper authentication by a competent witness with personal knowledge; counsel shall not serve as a fact witness in this matter. This ruling concerns admissibility, not advocacy. It is an uncontested fact in this record that the seven photographs at issue (NY St Cts Filing [NYSCEF] Doc Nos. 321—327) were taken, not by a disinterested custodian, neutral third party, or forensic document examiner, but by Defendant Adam Plotch's then-counsel, Anthony R. Filosa, Esq., during an October 2, 2019 court-ordered inspection of the original loan documents . Mr. Filosa's own hands operated the camera; his own eyes beheld the condition of the Consolidated Note and its allonge; and his own judgment selected what and how to capture in the images.

This provenance is legally significant for several reasons:

1. Foundation and Personal Knowledge

Photographic evidence, to be admissible, must be authenticated by a witness with personal knowledge that the images accurately depict what they purport to show. The photographer is ordinarily the most direct authenticating witness. In this instance, Mr. Filosa alone possesses first-hand knowledge of the vantage point, lighting, handling, and contemporaneous circumstances of the inspection that produced the photographs. Unless another competent witness who was present can testify to these matters, the proponent would be forced to call Mr. Filosa himself to establish authenticity.

2. The Advocate—Witness Rule

An attorney functioning both as trial advocate and as a material fact witness occupies a position fraught with ethical and procedural hazards. The "advocate-witness" prohibition is not merely aspirational; it is grounded in the recognition that a lawyer's dual role can prejudice the tribunal and the opposing party alike, blurring the line between evidence and argument, and potentially inviting the fact-finder to accord undue weight to counsel's statements. Here, should Mr. Filosa be required to authenticate the photographs, he would necessarily give sworn testimony in the very matter in which he serves as counsel, thereby implicating this rule.

3. Risk of Evidentiary Conflation

When a piece of evidence originates from an advocate's own actions in the course of litigation, the Court must take particular care to ensure that the fact-finder distinguishes between counsel's role as zealous advocate and counsel's role as a source of factual proof. Without that separation, cross-examination of the proponent's own lawyer becomes unavoidable, potentially compromising the integrity of the adversarial process.

4. Absence of Neutral Documentation Protocol

The record contains no indication that the photographs were taken pursuant to a stipulated protocol, e.g., in the presence of a court reporter, opposing counsel, or under conditions designed to replicate forensic examination standards. Rather, the images are the unilateral product of one side's counsel, five years after commencement, in a different custodial environment from that at inception . This absence of procedural safeguards further magnifies the foundational and credibility concerns.

Accordingly, while the authorship of the photographs does not, per se, make them inadmissible, it places substantial procedural preconditions on their use. If Defendant elects to offer them at trial, the Court will require a proper foundation through a witness with direct knowledge other than Mr. Filosa, or, if no such witness exists, a substitution of counsel to permit Mr. Filosa to testify without violating the advocate-witness prohibition. In short, the evidentiary fate of the photographs is inextricably tied to how Defendant proposes to authenticate them in compliance with both evidentiary and ethical strictures.

IV. Conclusion and Decretal Paragraphs

Accordingly, it is

ORDERED that Plaintiff's motion in limine (Seq. 16) to preclude Defendant from introducing at trial the photographs filed at NY St Cts Filing [NYSCEF] Doc Nos. 321—327 is DENIED; and it is further

ORDERED that admission of the photographs is conditioned on Defendant laying a proper foundation at trial, including authentication through a witness with personal knowledge, and the Court will entertain contemporaneous objections going to foundation, chain of custody, and weight; and it is further

ORDERED that nothing herein forecloses Plaintiff from offering its affidavits and testimony concerning the condition of the Note and allonge at commencement (including the [*4]June 2014 transmittal and receipt described in the Barnes, Stevens, and Schwartz affidavits) or from eliciting testimony concerning any separation for scanning; the weight of all such proof, and any inferential connections from the 2019 inspection to the 2014 commencement date, shall be determined at trial.