By Joel R. Brandes
IT IS NOT USUAL in matrimonial actions for the court to grant ex parte
restraining orders by order to show cause. However, since the enactment of the
matrimonial calendar control rules (22 NYCRR 202.16), it appears to be an
ever-increasing practice for some courts to make sua sponte [FN1] orders and
to make orders, upon oral application, without prior notice of motion. In many
instances this practice may be improper and prejudicial to the client, and it
would serve the matrimonial practitioner to review the fine points of civil
motion practice, as part of one's fulfillment of the mandatory continuing
legal eduction requirements.
Civil Practice Law and Rules 2211(a) provides that a motion is an
application for an order. A motion on notice is made when a notice of motion
or order to show cause is served. CPLR 2211(b), entitled "ex parte
motions," inferentially defines an ex parte motion as one that "may
be made without notice.''
Ex Parte Motions
Not all motions are required to be made on notice. For example, a motion
pursuant to CPLR 308(5), for permission to serve a summons by an alternative
method, is an ex parte motion. An ex parte motion is made by submitting an
order to the court with supporting papers demonstrating why the order should
be signed. CPLR 2217 requires that it be accompanied by an affidavit stating
the result of any prior motion for similar relief. An ex parte motion is
"made" when the proposed order and papers in support of the motion
are submitted to the court for signature. Some ex parte motions are
specifically authorized by statute. [FN2] Ex parte applications that are not
authorized by statute are disfavored by the courts [FN3] because of the
attendant Due Process implications caused by proceeding without notice.
An ex parte order may be not be appealed. The remedy is to move to vacate
or modify it and, if denied, appeal from the denial of the motion.
The requirement of giving a notice of motion, unless an ex parte motion is
authorized, is jurisdictional. It is an error of law and a denial of due
process for the court to grant an oral application on a substantive matter
absent a notice of motion and an opportunity to be heard, as required by CPLR
2214 (b). [FN4] Failure to give a timely notice of motion, as required by CPLR
2214, deprives the court of jurisdiction and renders the order granting the
motion jurisdictionally void. [FN5]
Absent statutory or other authority to grant relief on its own motion,
[FN6] a court may not grant sua sponte relief that substantially prejudices a
party. In Liebowits v. Liebowits, [FN7] the husband sought an order directing
his wife to account for and turn over to him the contents of a safe deposit
box under her sole control. The box contained securities and property
inherited by the husband from his mother, which were clearly separate
property; it also contained marital assets.
The trial court ordered the wife to account for the assets in the box and
to give her husband his inherited assets, but it denied the motion insofar as
it related to marital property, provided the that wife did not dispose of the
property during the litigation. Although the wife did not move for affirmative
relief, the lower court, sua sponte, issued an order restraining the husband
from disposing of marital property within his control.
The Second Department held that the trial court erred in its sua sponte
restraint of the husband's disposition of marital property. It stated that due
process required written notice from the moving spouse that he or she seeks
possession of the marital assets or a restraint on their disposition. Absent
such written notice, a court is powerless to act.
In Brody v. Brody, [FN8] another matrimonial action, plaintiff-wife
appealed from so much of an order of the Supreme Court which, among other
things, sua sponte restrained her from transferring any marital property,
except in the ordinary course of business. The Appellate Division deleted the
provision restraining plaintiff from transferring marital property. It held
that with regard to Special Term's restraint of plaintiff's transfer of
marital assets, such sua sponte stay was in violation of plaintiff's due
process rights, as she was never notified that such an order was under
consideration.
A court may grant undemanded relief only if there is no substantial
prejudice to the adverse party. [FN9]
A sua sponte order may or may not be an ex parte order, depending upon
whether the parties are present at the time the order is made.
Question of Appeals
An ex parte order is not appealable. [FN10] However, relief should be
available under CPLR 5704(a), which provides that the Appellate Division or a
justice of the Appellate Division may vacate or modify any order granted
without notice to the adverse party by any court or a judge thereof from which
an appeal would lie to such Appellate Division. It may also grant any order or
provisional remedy applied for without notice to the adverse party and refused
by any court or a judge thereof from which an appeal would lie to such
Appellate Division.
An appeal may be taken to the Appellate Division from any order that is not
appealable as of right in an action originating in the Supreme Court by
permission of the judge who made the order or by permission of a justice of
the Appellate Division from such order. Nevertheless, in Everitt v. Health
Maintenance Center, [FN11] the Appellate Division held that a pre-calendar
conference order not made on notice of motion and without supporting papers
was not appealable, and suggested that in such cases appellate review could be
had, if otherwise available, if the party hurt by the order formally moved to
vacate or modify it. The determination of that motion would then be appealable.
There is no per se rule against making an oral motion. However, motions are
governed by the notice requirements of CPLR 2214 and the Uniform Rules.
Moreover, a movant must present affidavits or other competent evidence in
support of his factual assertions and the court rules require that a specific
form notice of motion be used. [FN12] In Matter of Shanty Hollow Corp. v.
Poladian, [FN13] the court considered an oral motion to dismiss and the
affidavits in support of the motion, although no notice of motion was served.
The Appellate Division found that the Supreme Court properly considered the
oral motion and the affidavits in support of the motion, in pursuance of the
discretion conferred upon it by CPLR 2214 [c]. In Kaiser v. J & S Realty,
[FN14] the defendant made an oral application to vacate a default judgment,
apparently on the ground that defendant was never served with the summons and
complaint. The Supreme Court granted the motion to vacate and plaintiffs
appealed.
The Appellate Division reversed. It held that "While there appears to
be no per se rule against oral motions, [FN15] a movant must, nonetheless,
present affidavits or other competent evidence in support of its factual
assertions *** ." Defendant made no evidentiary showing. The record on
appeal contained no affidavits, sworn testimony or other competent evidence in
support of defendant's motion. Therefore, the Supreme Court's determination
could not be sustained.
Re-argument, Renewal
The provisions of the CPLR were amended in 1999, [FN16] in relation to
motions to renew and motions to re-argue, to clarify the case law. The law
governing motions to re-argue and renew has been based primarily on court
decisions, which address the area piecemeal and do not provide a coherent
structure for treatment of these motions. They do clearly distinguish between
motions for leave to re-argue and leave to renew and specify time limits for
the making of these motions and rights of appeal.
Rule 2221 of the CPLR requires that a motion for leave to re-argue must be
identified specifically as such; must be based on matters of fact or law
allegedly overlooked or misapprehended by the court in determining the prior
motion but may not include any matters of fact not offered on the prior
motion; and must be made within 30 days after service of a copy of the order
determining the prior motion and written notice of its entry. This rule does
not apply to motions to re-argue a decision made by the Appellate Division or
the Court of Appeals.
A motion for leave to renew must be identified specifically as such; must
be based upon new facts not offered on the prior motion that would change the
prior determination or must demonstrate that there has been a change in the
law that would change the prior determination; and must contain reasonable
justification for the failure to present such facts in the prior motion.
A combined motion for leave to re-argue and leave to renew must identify
separately and support separately each item of relief sought.
In determining a combined motion for leave to re-argue and leave to renew,
the court is required to decide each part of the motion as if it were
separately made.
If a motion for leave to re-argue or leave to renew is granted, the court
may adhere to the determination on the original motion or may alter that
determination.
Charting Own Course
Procedural irregularities are overlooked where the parties chart their own
course for litigation. In Osterling v. Osterling, [FN17] both parties
requested the trial court to construe the meaning of part of a stipulation
entered upon the record disposing of their marital property in plaintiff's
action for divorce. Plaintiff's motion to vacate the order determining the
request because of, among other things, procedural irregularities, was denied.
The Appellate Division held that the trial court properly denied
plaintiff's motion because, although neither party served motion papers, the
original order recited that the review undertaken by the court was requested
by the parties. Since counsel for both parties voluntarily appeared and
argued, it was within the court's discretionary power under CPLR 2214 (c) to
resolve the issues presented, and plaintiff was deemed to have waived any
claim of error arising from the informal nature of the proceedings.
FN(1) The court may make an order: on the "court's own motion" -
See CPLR 902 [Class Action]; "on its own initiative" - See CPLR
214-d(4); 1003 [joinder], 3101 (h) [disclosure], 3103(a) [protective orders],
3104 (a)* and (c) [Supervision of Disclosure)* without notice, 3126 (a) [want
of prosecution], 4212 [Advisory Jury], 4314 [Successor Referee], 4317 [Referee
to Determine], 4404 (a) and (b) [Post Trial Motion for Judgment and New
Trial], 5240 [Modification of Protective Order], 6405 [Removal of Receiver],
7002(a) [Habeas Corpus petition], 7805 [stay], 8301(d) [Taxable Disbursements]
"upon its own initiative" - CPLR 1202(a) [appoint guardian ad litem];
CPLR 1342 and 6405 [remove receiver]; CPLR 4212 [refer issues to advisory jury
or referee to report]; CPLR 4404 [set aside verdict, decision or judgment and
render judgment notwithstanding verdict]; CPLR 7805 [stay proceedings or
enforcement] "upon its own motion" - See CPLR 1311 [forfeiture],
3036(5), 7559 [call Neutral Expert Witness] "ex parte" - See CPLR
1311, 1311-a [forfeiture)]and3215(d) [default judgment].
FN(2) The court may make an order: "without notice" - See CPLR
315, 408 (disclosure) 1317 (attachment), 1336, 5237 [Failure of Title], 5250
[arrest of judgment debtor], 5704 (a) and (b) [Review of Ex Parte Orders],
6210 [Orders of Attachment], 6211 [Order of Attachment], 6313(a) [Temporary
Restraining Order], 6314 [Vacate or Modify Temporary Restraining Order], 7002
(a) [Habeas Corpus Petition], 7102 (d)(2) [Seizure of Chattel], 8403 [Taxation
without Notice], 8501 [Security for Costs]; "with or without notice"
- See CPLR 3106(b) [Priority of Deposition], 5233(c) [Sale of Personal
Property]; See also DRL 114(1) and 233.
FN(3) Deloitte, Haskins (Newson) 146 Misc2d 884 [Sup, 1990]; Fosmire v.
Nicoleau 144 AD2d 8 [2d Dept. 1989].
FN(4) See Phoenix Enterprises Ltd. v. Insurance Co. of North America, 130
AD2d 406 (1st Dept., 1987); Kantor v. Pavelchak, 134 AD2d 352.
FN(5) Golden v. Golden, 128 AD2d 672. Beck v. Gooday, 24 AD2d 1016 (2d
Dept., 1965).
FN(6) See Note 1, infra.
FN(7) 93 AD2d 535 (2d Dept., 1983).
FN(8) 98 AD2d 702 (2d Dept, 1983).
FN(9) Ressis v. Mactye, 98 AD2d 836 (3d Dept, 1983).
FN(10) Katz v. Katz, 68 AD2d 536.
FN(11) 86 AD2d 224 (1st Dept, 1982).
FN(12) See also 22 NYCRR 202.7.
FN(13) 23 AD2d 132 (3d Dept, 1965) aff'd 17 NY2d 536.
FN(14) 173 AD2d 920 (3d Dept, 1991).
FN(15) Citing Matter of Shanty Hollow Corp. v. Poladian, 23 AD2d 132, 133-
134, affd 17 NY2d 536; Siegel, NY Prac 243, at 363-364 [2d ed.].
FN(16) Laws of 1999, Ch 281, Effective July 20, 1999.
FN(17) 126 AD2D 965 (4TH DEPT. 1987).
Joel R. Brandes, has law offices in Garden City and New York City. He
co-authored Law and the Family New York and Law and the Family New York Forms
(both published by Westgroup). Bari B. Brandes, a member of the firm, co-
authors the Annual Supplements to Law and the Family New York 2d and assisted
in the preparation of this article.
2/22/2000 NYLJ 3, (col. 1)
