Joel R. Brandes* and Bari B. Brandes**
TABLE OF CONTENTS
Introduction………………………………………….………
179
What is a
motion?………………………………….………..
179
Ex parte
motions…………………………………….………
181
Notice of Motion:Time for service of motion papers…..…… 183
Exception for Civil Contempt
Motion………………………. 183
Exception for Motion for
Subpoena………………………… 185
Order to Show Cause for enforcement in matrimonial actions 186
Making a Cross
Motion……………………………………….
187
Calculation of days for service of motion papers……………. 188
Manner of service of Notice of
Motion………………………. 189
Time for and Manner of Service of Order to Show Cause…… 192
Timeliness of service of Order to Show Cause
and consideration of answering and reply papers…………….. 194
Format of motion
papers………………………………………
197
Court rules applicable to motion practice
……………………. 199 Index number on all
papers……………………………………
199
Notice of Motion - required format
………………………….. 200
Place motion returnable and submission of papers…………… 200
Service of papers on all parties and nature of papers ………… 201
Oral
argument…………………………………………………
201
Adjournment of motion
………………………………………
202
Disclosure
Motions……………………………………………
202
Referral of ex parte
motions…………………………………...
203
Submission of Order to Show
Cause……………………….… 204
Withdrawal of
motion…………………………………………
204
Notice of motion –
jurisdiction………………………………. 204
Waiver of lack of timely Notice of Motion…………………...
208
Time for service of answering and reply papers by mail……. 211
Time for service of Notice of Cross Motion by mail………… 212
Oral
motions…………………………………………..….…..
213
Charting your own course: Waiver of procedural rules……… 214
Courts individual motion rules - permission to make motion.. 215
Sharp
practice………………………………………………..
220
The court may not grant sua sponte
relief…………………… 221
Form of
order…………………………………………………
225
Settlement and abandonment of
order……………………….. 226
Entry and filing of order - method of service of order………. 229
Necessity for service of the order - Notice of Entry…………. 229
Motions to Reargue, Renew or
Resettle….………………….. 232
Motion to
Reargue……………………………………………
233
Motion to
Renew……………………………………………..
235
Motion for
Resettlement……………………………………..
236
Applications to original
judge……………………………….. 237
Review of ex parte orders by appellate division…………….
238
INTRODUCTION
There is little doubt that motion practice constitutes the bulk of
pre-trial work and inundates our court system in civil cases. When opposing attorneys
cannot agree to produce documents for disclosure, one of them makes a "motion"
for an order compelling disclosure. When a father assaults his child, the mother’s
attorney makes a motion for an order of protection. When a litigant wants permission to
serve a summons by an alternative method, she makes a "motion" for such relief.
A litigant makes a motion for "interim relief" where it is needed. In each
instance, a motion is made for relief in the context of an action, or in contemplation of
an action. Although motion practice constitutes a major portion of civil litigation in the
Supreme Court today, the rules of motion practice are not clear or concise. The rules are
scattered throughout various sections of the CPLR and the Uniform Rules. Confusion often
occurs, due in part to the promulgation of individual motion practice rules by judges who
work under an Individual Assignment System (IAS). The purpose of this article is to
provide the bar with a working tool that summarizes in one place the procedural rules of
civil motion practice.
WHAT IS A MOTION?
"A ‘civil judicial proceeding’ is the
prosecution, other than a criminal action, of an independent application to a court for
relief." Ordinarily, actions are proceedings by one person against another, and
special proceedings are extraordinary or unusual in nature. The CPLR does not define
"action" or "special proceeding," but does provide that
"action" includes a special proceeding. An action may be distinguished from a
special proceeding in that it is commenced by filing a summons. A special proceeding,
however, is generally commenced by filing a notice of petition or an Order to Show Cause.
An order is a direction for incidental relief in the context of
an action or proceeding. An application for an order is a motion. When a notice of motion
or an Order to Show Cause is served, a "motion on notice is made." A motion
differs from a ruling on the record in open court at trial or during a hearing. No appeal
lies from a ruling because it is not a formal order. Unlike a ruling, a motion results in
a formal order and, therefore, may be appealable. A party to an action or special
proceeding has the right to move for an order in an action. Sometimes non-parties are also
permitted by statute to do so.
EX PARTE MOTIONS
A judicial proceeding is ex parte when "it is taken or
granted at the instance and for the benefit of one party only, and without notice to or
contestation by, any person adversely interested." An ex parte motion is made
by submitting an order to the court with supporting papers demonstrating why the order
should be signed. The 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 do not require notice and are explicitly authorized by statute. One
such motion is a motion made pursuant to CPLR 308(5). Ex parte applications
which are not authorized by statute are disfavored by the courts.
An ex parte motion made in the Supreme Court, "that
may be made without notice may be made at a motion term or to a justice out of court in
any county in the state." An ex parte motion made in such a manner must be
accompanied by an affidavit stating the result of any prior motion for similar relief. The
motion must also specify new facts, if any, that were not introduced to the court in the
prior motion.
In the Matter of Deloitte, Haskins and Sells, defendants made an
application pursuant to CPLR 3102(e). The action, which was commenced in Michigan, was for
an ex parte order directing the custodian of records for a nonparty to the
litigation to appear for a deposition, and to produce documents, at the office of the
defendant’s New York counsel. In declining to sign the proposed ex parte
order, the court stated that "in the absence of a judicial mandate (CPLR 3102-e), and
in accordance with the spirit of CPLR 3101(a)(4) * * * this application should be made on
notice to the witness and adversary and not ex parte."
In Fosmire v. Nicoleau, an application was made pursuant to CPLR
5704 to vacate an ex parte order of the Supreme Court, Suffolk County. The
order authorized Brookhaven Hospital to administer necessary blood transfusions to the
respondent. The court held that "[e]x parte applications are generally
disfavored by the courts, unless expressly authorized by statute, because of the attendant
due process implications caused by proceeding without notice."
NOTICE OF MOTION:
TIME FOR SERVICE OF MOTION PAPERS
CPLR 2214(b) lays out the rules for service of motion papers. Section
2214(b) discusses the time of service. It states that the notice of motion, along with
supporting affidavits, are to be served at least eight days prior to the date when the
motion is noticed to be heard, and that answering affidavits are to be served at least two
days before the hearing date. CPLR 2214(c) requires that all papers must be served in
accordance with this rule, if they are to be read either in support of, or in opposition
to, the motion. Failure to do so will result in non-recognition by the court, unless the
court finds good cause for the failure and allows recognition of the papers.
EXCEPTION FOR CIVIL CONTEMPT MOTION
Not all motions are required to be served at least eight days before
the time at which the application is noticed to be heard. For example, the moving papers
on an application for civil contempt, pursuant to Section 756 of the Judiciary Law, are
governed by a different time limitation.
The application for civil contempt may be brought by service of a
notice of motion or by Order to Show Cause. If the application is brought by notice of
motion, the notice of motion and supporting papers must be personally served upon the
accused at least ten days, and no more than thirty days, prior to the return date of the
application. However, where the application is made by an Order to Show Cause, the court
may reduce the period within which the papers must be served or the papers are returnable
and may direct service upon the attorney for the accused. A notice of motion for contempt,
together with the supporting papers, may be served by mail. Section 756 of the Judiciary
Law requires that an application to punish for contempt contain on its face both a notice
that the purpose of the hearing is to punish for contempt and that such punishment may
consist of a fine or imprisonment. Additionally, the application requires a warning,
printed in 8 point bold type, stating that failure to appear may result in an arrest or an
imprisonment. The warning reads as follows:
A motion initiating a civil contempt proceeding against a third party
witness, who is not a party to the underlying action within which the contempt is claimed
to have been committed, may not be served by mail. The nonparty witness is not privy to
the underlying action, and is entitled by CPLR 403(d) to have notice served in the same
manner as a summons in an action.
The notice and service requirements are jurisdictional. Absent
requisite notice and warning, the court is without jurisdiction to punish for contempt.
However, the notice and service requirements may be waived. The New York Court of Appeals
has held that by contesting a contempt application on the merits and failing to object in
a timely manner to the omission of the notice and warning required by the statute, the
accused waived the protections afforded therein. The commencement of a contempt
application by notice of motion has been held valid where the application was opposed on
the merits and the Appellate Division found it had no prejudicial effect.
EXCEPTION FOR MOTION FOR SUBPOENA
CPLR 2302(b) discusses the court’s authority to issue motions. It
states that a motion for a "subpoena to compel production of an original record or
document where a certified transcript or copy is admissible . . . or to compel attendance
of any person confined in . . . jail shall be issued by the court." Such motion must
be made on "at least one day’s notice to the person having custody of the
record, document or person."
ORDER TO SHOW CAUSE FOR ENFORCEMENT IN MATRIMONIAL ACTION
An application for the enforcement of a New York order or judgment for
maintenance, child support, counsel fee or property distribution is treated as a motion in
the matrimonial action for enforcement purposes. The Supreme Court of New York has
continuing jurisdiction to enforce its orders and judgments. The court does not require
the service of new process to obtain in personam jurisdiction over the spouse in default.
Section 244 of the Domestic Relations Law does provide, however, that
in a proceeding to obtain a judgment for arrears due under a judgment of divorce,
separation, annulment, or declaration of nullity of a void marriage, the application for
an order directing the entry of judgment must be upon notice to the spouse or other person
as the court may direct. To comply with Section 244 the application must be made by an
Order to Show Cause. Section 243 of the Domestic Relations Law also requires that
applications for security and sequestration must be on notice to the spouse or other
person as the court shall direct. Further, there is nothing in sections 243 or 244 that
requires personal service upon the spouse. It simply states that the application for the
order shall be upon such notice to the spouse as the court may direct. Therefore, it may
be assumed that the court will direct that service shall be made in a manner in keeping
with the particular circumstances. The due process clause of the Federal Constitution may
require that reasonable notice, that is calculated to inform the spouse of the action for
a default and judgment, be given.
There is no prerequisite that the application for entry of a judgment,
security, sequestration or contempt, if made upon notice to a person other than the
spouse, be made to his attorney. It suffices if the person directed by the court to be
served is one through whom it is likely that defendant will receive adequate notice of the
application. It has been held that a direction for service of notice upon the
husband’s attorney of record in the matrimonial action was sufficient, even though he
contended that he no longer represented the husband.
MAKING A CROSS MOTION
A party served with a Notice of Motion or an Order to Show Cause may
ask for relief in response to the motion by making a cross motion. CPLR 2215 authorizes
the service of a notice of cross motion. It provides that "[a]t least three days
prior to the time at which the motion is noticed to be heard, a party may serve upon the
moving party a notice demanding relief, with or without supporting papers." It also
provides, "[r]elief in the alternative or of several different types may be demanded;
relief need not be responsive to that demanded by the moving party." Supporting
papers do not have to be served with the Notice of Cross Motion.
CALCULATION OF DAYS FOR SERVICE OF MOTION PAPERS
The General Construction Law provides a method for calculating the
number of days for serving motion papers. It provides that "a calendar day includes a
time from midnight to midnight." Calculating the number of days from "within
which or after or before which an act is authorized or required to be done, means such
number of calendar days exclusive of the calendar day from which the reckoning is
made." For example, "Saturday, Sunday, or a public holiday must be excluded from
the reckoning if it is an intervening day between the day from which the reckoning is made
in a two day period, or if the day of reckoning is the last day of the period."
"In computing any specified period of time from a specified event, the day upon which
the event happens is deemed the day from which the reckoning is made. The day from which
any specified period of time is reckoned shall be excluded in making the reckoning."
"When any period of time within which or after which or before
which an act is authorized or required to be done, ends on a Saturday, Sunday or a public
holiday, the act may be done on the next succeeding business day . . . ." If the
period ends at a specified hour, the act may be done at or before the same hour of the
next succeeding business day. However, where a period of time specified by contract ends
on a Saturday, Sunday or a public holiday, the extension of such period is governed by
General Construction Law § 25.
MANNER OF SERVICE OF NOTICE OF MOTION
Generally, a party to an action is prohibited from serving any papers
in the action. CPLR 2103(a) provides that motion papers may be "served by any
person" who is not a party to the action and who is eighteen years of age or over.
Moreover, if a party is represented by an attorney, the papers must be served upon the
attorney. In order to avoid duplication expenses, only a single copy of the motion papers
is required to be served upon the attorney.
Service of motion papers upon an attorney may be made by delivering the
papers to the attorney personally, or by mailing the papers to the attorney at the address
designated by the attorney for that purpose. If no address is designated, the mail should
be forwarded to the attorney’s last known address. If the attorney’s office is
open, service of the motion papers may be made by leaving the papers with a person in
charge of the office. If there is no person present who is in charge of the office, the
documents may then be left in a conspicuous place. If the attorney’s office is
closed, the papers may be enclosed in a sealed wrapper directed to the attorney and
deposited in the attorney’s office letter drop or box. Otherwise, the papers may be
left at the attorney’s residence within the state of New York, with a person of
suitable age and discretion. However, service of the motion papers upon an attorney may
not be made at the attorney’s residence unless service at the attorney’s office
cannot be made.
In 1989, the CPLR was amended to permit service by electronic means.
CPLR Section 2103 allows for the transmission of motion papers to the attorney by
electronic means when a telephone number is designated by the attorney for that purpose.
An attorney may designate a telephone number for electronic service in the address block
on a paper served or filed by the attorney during an action or proceeding. The provision
of such constitutes consent to electronic service. It is also appropriate to dispatch
papers to the attorney by overnight delivery service, to a designated address or to the
attorney’s address.
The definitions under CPLR 2103 which are expressly noted are
‘mailing’ and ‘electronic means’. Section 2103 articulates the
procedures for service of papers upon a party. If a party has not appeared by an attorney,
or the party’s attorney cannot be served, the service of motion papers may be made
upon the party by one of the methods specified above, except it may not be left in the
party’s office or deposited in the party’s office letter drop or box. If a paper
cannot be served by any of these methods specified above, service may be made by filing
the paper as if it were a paper required to be filed.
Service by mail is deemed complete upon mailing. Service by fax is
complete upon the sender’s receipt of a signal from the recipient’s fax machine
indicating that the transmission was in fact received, and the mailing of a copy of the
paper to that attorney. Service by overnight courier is complete when the papers enclosed
in a properly addressed wrapper are given to the delivery service for overnight delivery,
prior to the latest time designated by the service for such delivery." A time table
for the service of motion papers is in the footnote.
TIME FOR AND MANNER OF SERVICE OF ORDER TO SHOW CAUSE
An alternative method of bringing a contested motion is by an Order to
Show Cause. CPLR 2214(d) authorizes the court to grant an Order to Show Cause, "to be
served in lieu of a notice of motion, at a time and in a manner specified therein."
An Order to Show Cause is served "in lieu of a notice of
motion," which becomes an order after it is signed by a judge. One reason for seeking
an Order to Show Cause is that CPLR 2214(b) requires the person making the motion to give
his/her adversary’s attorney at least eight days prior notice of a hearing for the
motion. Therefore, if the movant cannot wait eight days to make the motion and wants
permission to have a shorter return date, or needs an ex parte interim order, an
application for this relief can be made by submitting to the Court an Order to Show Cause
with supporting papers. Upon the submission of an Order to Show Cause, the Court may, in
its discretion, shorten the return date of the motion, direct the manner in which the
motion papers are to be served or grant interim relief (such as an injunction or a stay)
pending the determination of the motion. This is done in the body of the Order to Show
Cause that is submitted to the Court for signature.
An Order to Show Cause is, by practice and custom, an ex parte
motion which, when granted, results in an ex parte order. The CPLR, however, does
not specifically designate it as an ex parte order. Furthermore, the CPLR does not
specifically provide that it may be obtained without notice.
The time and manner of service of an Order to Show Cause is determined
by the court granting it. Absent a clear abuse of discretion, this determination will be
sustained. In Robinson v. Robinson, the Appellate Division held that "the mode
of service of the Order to Show Cause was within the court’s discretion, and the
notice was sufficient, where it was appropriate to advise defendant of the relief sought
and gave him a reasonable opportunity to be heard."
In Burstein v. Burstein, the plaintiff made a motion for an
order directing the defendant to give security for the payment of support and maintenance,
for the sequestration of defendant’s personal property, and for the appointment of
plaintiff as receiver. The Order to Show Cause directed that service of the order and
annexed papers be made upon defendant by registered mail at his office in New York City,
at his address in Reno, Nevada, and upon his attorney and business manager in New York
City. Plaintiff submitted proof of service, with return receipts signed by defendant in
accordance with the directions of the court. The Supreme Court in Bronx County held that
the challenge to this method of service had no support in the law, as "it was within
the court’s discretion to designate the mode of service of the Order to Show Cause,
since it was an order in an action."
The court does not have the authority to order that a motion be
returnable before the appellate division. In Moreton v. Buffalo Urban Renewal Agency,
a motion for a temporary injunction pending appeal was brought before the Appellate
Division by an Order to Show Cause signed by a justice of the Supreme Court. The Appellate
Division held that "CPLR 2214(d), providing for orders to show cause, does not
empower a judge or justice of a court of original jurisdiction to order that a motion be
returnable before an appellate court."
TIMELINESS OF SERVICE OF ORDER TO SHOW CAUSE AND CONSIDERATION OF
ANSWERING AND REPLY PAPERS
Absent a direction by the Court in the Order to Show Cause, answering
papers may be served at any time prior to the submission or oral argument of a motion.
In W.I.L.D. W.A.T.E.R.S., Ltd. v. Martinez, W.I.L.D.
W.A.T.E.R.S. brought an action for specific performance, related injunctive relief and
damages, and by Order to Show Cause moved for a temporary restraining order and a
preliminary injunction enjoining a third party purchaser, Mrs. Nelson, from transferring,
altering or destroying certain premises. The Supreme Court of Warren County granted the
temporary restraining order and directed that service of the Order to Show Cause, together
with the supporting papers, be made by May 9, 1988. The court set May 13, 1988 as the
return date. In its brief on appeal, "counsel for [appellant Mary] Nelson represented
that papers in opposition to the motion were submitted to the court, as well as to
plaintiff’s counsel, on the return date, immediately prior to the hearing, but that
they were rejected as untimely." The court, treating the motion as unopposed, granted
the preliminary injunction and other relief. The appellant, Mrs. Nelson, appealed and the
Appellate Division reversed. The Appellate Division began its analysis by noting that the
record did not indicate when appellant served her papers. Therefore, because the plaintiff
did not submit a brief, appellant’s characterization of what occurred at the hearing
was uncontested. "Since the motion was brought on by Order to Show Cause and there
was no court direction in the order limiting the time when answering papers were to be
filed," the appellate court held that such papers could be furnished up to the time
of submission of the motion or oral argument. Moreover, the court stated that even if this
had been a motion on notice, appellant would not have been obliged to answer prior to the
return date because she received only seven days’ notice, as she was served with the
moving papers on May 6, 1988."
In Block v. Nelson, plaintiff sought to recover a judgment for
arrears of alimony and child support by Order to Show Cause dated October 16, 1978 and
returnable on November 2, 1978. Thereafter, by Order to Show Cause dated December 22, 1978
and returnable on December 26, 1978, the defendant made a cross motion to modify the
custody and child support provisions of the judgment of divorce. The Order to Show Cause
directed that a note of issue be submitted to Special Term Part V "no later than noon
prior to the return date." Special Term Part V found no cross motion on the calendar
and there was no notice of motion served for the cross motion. Consequently, Special Term
treated defendant’s papers solely as opposing papers to the motion in chief and
determined the motion against him. Furthermore, the court noted that neither adjournments
nor notice of issue for the cross motion were filed.
The Appellate Division refused to "disturb the special term’s
finding," reasoning that "the defendant did not point to any proof in the record
showing that a note of issue was filed or that the cross motion was otherwise on the
calendar." Plaintiff argued that the cross motion was properly rejected because the
Order to Show Cause provided that answering affidavits were to be served five days before
the return date. The Appellate Division held that CPLR 2214 allows a court to permit the
service of a cross motion on four days’ notice. "It was not apparent from the
record what facts were brought to the attention of the court issuing the Order to Show
Cause, dated December 22, 1978." Therefore the court was unable to conclude whether
the lower court "abused its discretion in making that Order to Show Cause returnable
on only four days’ notice." Due to this "factual deficiency of the record,
the Appellate Court could not intelligently pass upon the issue of whether the plaintiff
had a fair opportunity to answer the cross motion."
The Block Court further held that because the "cross motion
was not on the calendar, Special Term acted within its authority in rejecting the cross
motion." However, the court concluded that
Special Term acted inconsistently in considering defendant’s
papers in opposition to the motion in chief. To be consistent, Special Term should have
accepted or rejected defendant’s papers in their entirety. Since Special Term chose
to consider the merits of defendant’s papers, it did the same on this appeal.
FORMAT OF MOTION PAPERS
CPLR 2101 provides the technical aspects of legal papers filed in
civil actions, and subsection (a) covers size, legibility and quality. Each paper served
or filed must be white and, except for exhibits, must be eleven by eight and one-half
inches in size. The paper must be legible and written in black ink. The names signed must
also be printed beneath each signature. Every other printed or typed paper that is served
or filed, except an exhibit, must be legible and at least ten-point in size, except for
exhibits.
All papers served or filed must be written in ordinary English usage.
If an affidavit or exhibit is in a foreign language, it must be accompanied by an English
translation, and an affidavit by the translator stating his qualifications and that the
translation is accurate. CPLR 2101 states, "every paper that is served or filed must
begin with a caption setting forth the name of the court, the venue, the title of the
action, the nature of the paper and the index number of the action, if one has been
assigned." It is sufficient to state the name of the first named party on each side
with an indication of any omissions. Subsection (d) discusses the attorney’s
endorsement of served and filed papers, requiring that each paper must include "the
name, address and telephone number of the attorney for the party serving or filing the
paper." If a party does not appear by attorney, each paper served or filed by that
party must be endorsed with the name, address and telephone number of the party.
In matrimonial actions, an attorney certification must actually appear,
without qualification, on any papers submitted by a party who is represented by counsel.
It must state, "I hereby certify under penalty of perjury and as an officer of the
court I have no knowledge that the substance of any of the factual submissions contained
in this document is false."
A signature, as defined by New York’s General Construction Law,
consists of "any memorandum, mark or sign, written, printed, stamped, photographed,
engraved or otherwise placed upon any instrument or writing with intent to execute or
authenticate that instrument or writing." Thus, a computer generated signature placed
on an affirmation is sufficient.
Except where otherwise specifically prescribed, copies of all papers,
including orders, affidavits and exhibits, may be served or filed instead of originals.
Where service of filing of the original is required, and the original cannot be found or
obtained, the court can allow a copy to be served or filed instead. Thus, copies of
orders, affidavits and affirmations may be served or filed in support of or in opposition
to a motion.
As long as a party’s substantial rights are not prejudiced, a
defect in form will be disregarded by the court. If a party seeks to amend the defect, the
court will freely grant the amendment. A party has the right to object to a defect in
form; however, such objection must be made by returning the paper within two days after
its receipt, together with a statement as to its defect.
COURT RULES APPLICABLE TO MOTION PRACTICE
The Uniform Rules for New York State trial courts deal with motion
practice. They provide that "there shall be compliance with the procedures prescribed
in the Civil Practice Law and Rules for the bringing of motions."
INDEX NUMBER ON ALL PAPERS
The party that files the first document in a civil action, after paying
the required fee, must obtain an index number from the county clerk, and affix it to the
paper. This party must inform all other parties in writing which index number shall
designate the action. Thereafter, this index number must appear "on the outside cover
and first page to the right of the caption of every paper tendered for filing in the
action." Section 202.5 of Title 22 of the New York Compilation of Codes, Rules, and
Regulations further requires that each cover and first page indicate the nature of the
paper being submitted and the county of venue. A case specifically assigned to a judge or
justice, must include "the name of the assigned judge to the right of the
caption." Additionally, where required, proof of service of process on all parties
must be annexed to every filed paper. Except for exhibits or printed forms, every paper
must be written on one side only, and if typewritten, contain at least a double space
between lines (except for any quotations, and for the names and office addresses of the
attorneys of record), and have margins spaced at least one inch. If any papers are stapled
together, or bound securely, the court may not reject them on the sole basis of lacking a
"backer." Either the attorney, or a party if the party is not represented by an
attorney, must sign the notice of motion.
NOTICE OF MOTION - REQUIRED FORMAT
Unless a motion is brought by an Order to Show Cause, or is an
application for ex parte relief, no motion may be filed with the court
unless a notice of motion is served or filed with the motion papers and is substantially
in compliance with the uniform notice of motion form that is found in the rules.
PLACE MOTION RETURNABLE AND SUBMISSION OF PAPERS
"All motions must be returnable before the assigned judge and
motion papers must be filed with the court on or before the return day."
In an instance where a judge has not been assigned to a case, a motion
should be due "before the court," along with an exact copy of the motion, a
Request for Judicial Intervention (if needed), and proof of service upon all other
parties, and must be filed with the court within five days of service upon the other
parties. The moving party, immediately after filing the papers, is required to provide
written notice of the index number to all other parties. In addition, copies of all
documents, showing proof of service and the index number, must be filed with the court, on
or before the return date. A judge will then be assigned to the case as soon as possible
after the Request for Judicial Intervention is timely filed. After the case is assigned to
the judge, the court will submit notice of the assigned judge’s name to all parties
involved. When motions are scheduled to be heard, in a county other than which plaintiff
has established venue, the motions "must be assigned to a judge in accordance with
procedures established by the chief administrator" in the county where the motion
will be heard.
SERVICE OF PAPERS ON ALL PARTIES AND NATURE OF PAPERS
The moving party also must serve copies of every affidavit and brief
upon every other party concurrently with service of the notice of motion. The party
answering likewise must serve copies of every affidavit and brief as required under CPLR
2214. Affidavits and affirmations are required to state the relevant facts, and briefs
must be used for a statement of the relevant law.
ORAL ARGUMENT
A party making a request for oral argument must set forth the request
in the notice of motion, the Order to Show Cause, or on the first page of the answering
papers. The assigned judge has discretion to determine that a motion be orally argued and
may fix a time for oral argument." A party requesting an oral argument must set forth
the request in its notice of motion, in its Order to Show Cause, or on the first page of
the answering papers. Where all parties to a motion request oral argument, oral argument
must be granted unless the court finds it to be unnecessary. Where a motion is brought by
Order to Show Cause, the court may set forth in the order that oral argument is required
on the return date of the motion.
ADJOURNMENT OF MOTION
Stipulations adjourning the return date of a motion must be in writing
and submitted to the assigned judge and will be effective unless the judge directs
otherwise. Only three stipulated adjournments, for an combined period of sixty days, may
be submitted without the court’s prior permission.
A request for an adjournment must be submitted in writing, upon notice
to the other party, to the assigned judge on or before the return date unless all parties
otherwise agree. The court will notify the requesting party upon granting or denying the
adjournment.
DISCLOSURE MOTIONS
Where a preliminary conference has not been held, motions relating to
disclosure or to a bill of particulars shall have a preliminary conference scheduled by
the court, in its discretion, not more than 45 days from the return date of the motion.
The court shall notify all parties of a scheduled date to appear for a preliminary
conference, and shall make available for signature of the parties a form of a stipulation
and order prescribed by the Chief Administrator of the courts. This stipulation
"agreeing to a timetable which shall provide for completion of disclosure within 12
months and for a resolution of any other issues raised by the motion," if signed and
returned to the court by all parties before the return date of the motion, will be
"so ordered" by the court and the motion deemed withdrawn. Thereafter, the
conference will be held on the assigned date and any issues unresolved subsequent to the
conference will be determined by the court.
Unless a settlement of an order is required by the circumstances, the
decision on a motion shall incorporate an order effecting the relief specified.
The court will not accept a motion unless the following documents have
been served and filed with the motion papers: (1) a notice of motion; and, for motions
relating to disclosure or to a bill of particulars, (2) an affirmation that counsel, in a
good faith effort to resolve the issues raised by the motion, has conferred with opposing
counsel. Any such affirmation "must indicate the time, place and nature of the
consultation, the issues discussed and any resolutions, or it must indicate good cause why
no such conferral with counsel for opposing parties was held."
An Order to Show Cause or an application for ex parte
relief need not contain the form notice of motion, but must contain the affirmation of
good faith if the affirmation is otherwise required by the rules.
REFERRAL OF EX PARTE MOTIONS
An ex parte motion submitted to a judge who is
outside the county where the underlying action is venued must be referred to the
appropriate court in the county of venue. However, if the judge where the ex parte
motion is submitted determines that the motion requires immediate attention, the judge may
make an immediate determination on the motion.
SUBMISSION OF ORDER TO SHOW CAUSE
Parties submitting papers to the court, either for signature or for
consideration by the court, must present the papers to the clerk of the trial court for
the appropriate court or clerks office. In the event the clerk is unavailable, or should a
judge so direct, the papers may be submitted to the judge. When a judge directs that the
papers be submitted to a judge, a copy of the papers clearly addressed to the judge for
whom they are intended and displaying "the nature of the papers, the title and index
number of the action in which they are filed, the judge’s name and the name of the
attorney or party submitting them," must be filed with the clerk as soon as
practicable. The clerk must promptly deliver any papers filed in the clerk’s office
to the appropriate judge.
WITHDRAWAL OF MOTION
A motion may be withdrawn by a party at any time prior to its
submission to the court. However, once the motion is submitted, it may only be withdrawn
with the consent of the parties or by order of the court. A motion is submitted after oral
argument or by submission of the motion papers to the court on the return day.
NOTICE OF MOTION - JURISDICTION
Courts have held that the requirement of giving notice of motion is
jurisdictional. Moreover, it is error as a matter of law and a denial of due process for
the court to sua sponte grant an oral application of a substantive matter absent
notice of motion and an opportunity to be heard, as required by CPLR 2214(b). Failure to
give timely notice of motion as required by CPLR 2214 deprives the court of jurisdiction
and renders the order granting the motion void. CPLR 2214(b) provides:
"A notice of motion and supporting affidavits shall be served at
least eight days before the time at which the motion is noticed to be heard. Answering
affidavits shall be served at least two days before such time. Answering affidavits shall
be served at least seven days before such time if a notice of motion served at least
twelve days before such time so demands; whereupon any reply affidavits shall be served at
least one day before such time."
Furthermore, failure to give timely notice of motion also deprives the
court of jurisdiction to sua sponte entertain such a motion and renders the
resulting order void.
In Beck v. Goodday, the respondent served its "motion to
dismiss the petition" by mail on May 28, 1964, returnable on June 1, 1964, which was
less than the time prescribed by CPLR 7804. The Appellate Division held that Special Term
did not acquire jurisdiction of the motion. Therefore, the order granting
respondent’s motion was jurisdictionally void.
In Morabito v. Champion Swimming Pool Corp, the plaintiff served
a motion for summary judgment on September 7, 1961, with a return date of September 14,
1961. The Appellate Court held that "it was an improvident exercise of discretion to
deny Champion’s motion to open its default, and refuse to vacate a prior order and
deny plaintiff’s motion for summary judgment." Since the notice of motion only
provided seven days’ notice, Special Term did not acquire jurisdiction over the
motion for summary judgment. and the order granting plaintiff’s motion was
jurisdictionally void.
Some lower courts have been more liberal when the rights of a party
have not been prejudiced. In Coonradt v Walco Justice Cooke, sitting at Supreme
Court, Special Term, Rensselaer County, finding no substantial prejudice to the plaintiff,
held that the failure to serve a notice of motion and affidavits by mail 11 days before
the return date was an "irregularity which should be disregarded." In Coonradt,
the motion was originally returnable on September 22, 1967 but was adjourned to October
13, 1967. The court stated:
While it has been held that the failure to serve a notice of motion and
the supporting affidavits for at least the statutory time in advance of the return date is
a jurisdictional defect prohibiting the court from considering the substance of the motion
. . ., it should be treated as a procedural irregularity which is deemed waived unless
objection is raised thereto or one which may be disregarded if a substantial right of a
party is not prejudiced.
The court reasoned that "this is in keeping with the philosophy
underlying the Civil Practice Law and Rules, that procedural rules should be primarily a
means to the end of securing the just resolution of controversies on the merits and at a
minimum of expense and delay and with a de-emphasis on nonprejudicial procedural
defects." Applying this principle to the facts of the case, the court held that the
defect or irregularity was to be disregarded.
In Baciagalupo v. Baciagalupo, the Supreme Court, Suffolk
County, held that ten days’ notice of motion by mail, instead of eleven days, was a
mere irregularity and, absent prejudice, the motion could be considered. The court granted
the motion for leave to serve a supplemental complaint. The court noted the repeated
classification of a failure to give notice of the days specified as a jurisdictional
defect which results in an inability of the court to consider the substance of a motion so
served. Further, the court noted that because the defect may be waived by opposition on
the merits or even avoided altogether by the procedural device of an Order to Show Cause,
the rationale regarding jurisdictional defect is not always clear. The Court of Appeals
has even "ratified the efficacy of a motion first raised orally to the extent of
treating its ultimate disposition." The court reasoned that:
Although numerical authority is to the contrary, the lonesome, more
recent highest precedent seems to indicate a defect in the notice of motion as to
timeliness as something other than jurisdictional. This reasoning leads us to consider the
defendant’s objection here as addressed to a procedural irregularity, which may be
disregarded absent prejudice to the defendant.
WAIVER OF LACK OF TIMELY NOTICE OF MOTION
Some Appellate Courts have held that lack of jurisdiction may be waived
if due to a failure to give timely notice of motion. For example, in Miot v. Jocarl
Realty Corp., the court held that plaintiff’s contention, that the
original order dismissing the complaint was jurisdictionally void because it was based on
insufficient notice of motion (7 instead of 8 days’), lacked validity because the
contention was not raised in the court below and therefore could not be raised on appeal.
Moreover, the court held that the plaintiff’s application for an adjournment from
July 10, 1961, the original motion’s return date, to August 15, 1961, constituted a
general appearance. As a consequence, the motion to vacate the orders of dismissal, which
resulted in the order appealed from, was in fact a hearing on the merits. Since the August
15, 1961 appearance constituted a general appearance, the plaintiff was deemed to have
waived the defect arising out of the insufficient notice of the motion.
In Todd v. Gull Contracting Co., Inc., the court held that
"although the application for the severance was made on insufficient notice, the
defect in service was waived by the appellants’ opposition to the application on the
merits."
Capocia v. Brognano involved an appeal of the lower court’s
order granting the defendant’s motion "to disqualify the individual plaintiff
from acting as the corporate plaintiff’s counsel." Plaintiff rejected
defendant’s motion papers arguing that the "answering affidavits were requested
seven days prior to the return date and plaintiff had not been given the 17 days’
notice required for such a request." Thereafter, the plaintiff intentionally
defaulted by failing to submit opposing papers." The lower court concluded that it
had jurisdiction since plaintiff had received 13 days’ notice of motion, the minimum
required for motions served by mail, and plaintiff had appeared on the motion by letter
rejecting the papers. The Appellate Division affirmed, finding that the lower court
properly had jurisdiction, despite defendant’s error in giving plaintiff only 13
days’ notice of motion and demanding that answering affidavits be served 7 days prior
to the return date. The Appellate Division held that "since plaintiffs’ notice
of the motion was not less than the minimum time period authorized by CPLR 2103 (b) (2)
and 2214 (b), the lower court correctly ruled that the defect was not
jurisdictional."
In Bush v. Hayward, defendant’s motion to dismiss a
personal injury suit included a demand that responding papers be served at least 7 days
before the November 18, 1988 return date. In response, plaintiff submitted opposition
papers on November 17, 1988. On the return date of the motion, the Supreme Court, Broome
County refused to accept the plaintiff’s responding papers because they were
submitted late and the plaintiff offered no excuse for their tardiness. The Supreme Court
granted defendant’s motion and plaintiff appealed from the amended order of that
court. The Appellate Division rejected the plaintiff’s "contention that the
Supreme Court lacked jurisdiction to consider the defendant’s motion because the
original notice of motion served by defendant did not contain a return date as required by
CPLR 2214 (a)." The court noted:
"22 NYCRR 202.8 (b) provides that, when a case has not been
assigned to a judge, a party may properly serve motion papers without a return date or the
name of the assigned judge. After assignment to the judge, the court shall provide for
appropriate notice to the parties of the name of the assigned judge and of the return date
of the motion."
The court concluded that the defendant complied with 22 NYCRR 202.8
(b), reasoning that "here, plaintiff was served with the motion papers by mail on
October 19, 1988, and defendant then filed a copy of the moving papers, a request for
judicial intervention and an affidavit of service with the Supreme Court." The
plaintiff admitted that she received notice of the return date as early as November 3,
1988. The court found "that when plaintiff first received the motion papers on
October 20, 1988, she received 29 days’ notice of the motion, which was more than
sufficient to meet any of the time limitations set forth in CPLR 2103 (b) (2) and 2214
(b)." The court concluded that because the requisite notice was given, the lower
court had jurisdiction to hear the motion.
The Appellate Division also found that, due to the defendant fulfilling
the filing deadline requirements, the lower court was warranted in refusing to accept the
plaintiff’s opposing papers which were served the day before the motion’s due
date. The court noted that even if the defendant were not entitled to demand opposition
papers at least seven days before the return date, he at least was entitled to service of
answering papers two days prior to the return date. Additionally, the papers contained no
valid explanation as to why they were late, and "plaintiff’s proffered
explanations were belied by the record and would not suffice."
TIME FOR SERVICE OF ANSWERING AND REPLY PAPERS BY MAIL
The provision in CPLR 2103(B)(2), which states that five days must be
added when a period of time prescribed by law is measured from the service of a paper,
does not apply to the service of answering and reply affidavits by mail. The service of a
notice of cross motion does not measure any time period. In Ryan v. Town of Cortlandt,
the Second Department rejected the plaintiff’s contention that the defendant’s
reply papers, which were mailed two days prior to the adjourned return date, were not
timely served and, as a result, that she was prevented from showing evidentiary facts
sufficient to defeat the defendant’s motion. The court stated:
CPLR 2214 only requires reply affidavits to be served at least one day
before the motion is noticed to be heard when the moving papers are served 12 days before
the return date and there is a demand for answering papers to be served 7 days prior to
the return date. Although the additional five-day provision of CPLR 2103 (b) (2) applies
to service of the notice of motion by mail, it is inapplicable to service of answering or
reply papers * * *. Consequently, the defendant’s reply papers were timely
served."
TIME FOR SERVICE OF NOTICE OF CROSS MOTION BY MAIL
CPLR 2215 requires that at least a three day notice of a cross motion
be given. However, it is unsettled whether eight days’ notice of cross motion must be
given when a notice of cross motion is served by mail.
The Second Department requires that eight days’ notice be given
when a notice of cross motion is served by mail. In Perez v. Perez, an action for a
divorce, the husband appealed an order of the Supreme Court which granted the plaintiff
wife’s cross motion for further discovery with respect to his finances and for a pendente
lite award of expert appraiser fees. The Second Department affirmed the order, noting
that the plaintiff‘s notice of cross motion was served by mail four days before the
return date of the defendant’s motion, rather than the eight days required under CPLR
2215. The court further commented that "[a]lthough the notice of cross motion was not
timely, the Supreme Court considered the cross motion and supporting papers pursuant to
the discretionary power conferred upon it by CPLR 2214 (c)," and held that:
"[u]nder the circumstances of this case, and in view of the lack of prejudice to the
defendant, the Supreme Court’s actions constituted a proper exercise of discretion (
***)". In Vanek v. Mercy Hospital, the Second Department held that the trial
court "lacked jurisdiction to entertain the plaintiff’s cross motion based on
his failure to comply with the notice provisions of CPLR 2215 and 2103 ***." However,
the court did not indicate in the decision if the service was made by mail.
Therefore it appears that, in the Second Department, the failure to
timely serve a notice of cross motion is jurisdictional. The other departments have not
held that an additional 5 days must be added where service of the notice of cross motion
is by mail. Requiring at least eight days’ service of a notice of cross motion before
the return date, where service is by mail, is not in accord with the accepted method of
practice in most courts in this state and is illogical, as no period of time is measured
from the service of a notice of cross motion.
ORAL MOTIONS
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. 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. In
Matter of Shanty Hollow Corp. v. Poladian, the court considered an oral motion to
dismiss and affidavits in support of the motion, although no notice of motion was served,
pursuant to the discretion conferred upon it by CPLR 2214 (c). The order of The Special
Term recited "that the application to dismiss this proceeding made on behalf of the
respondents [the appellants in this court] be and the same hereby is denied". The
petitioner believed that the motion was not brought by notice of motion, that CPLR 2214
(b) requires that papers be served at least eight days before the notice date of the
motion, and that CPLR 2214 (c) provides that only papers served accordingly will be
accepted unless the court finds good cause to do otherwise. The Appellate Division found
"on August 14, the return day [of the motion], the appellant submitted an affidavit
by the person served [stating] that she on the same day delivered the papers to the
chairman of the board of assessors, an affidavit of the town clerk that she was never
served with any papers and an affidavit of the chairman of the board of assessors that the
person served was his personal employee and not an officer or employee of the town."
The case was held for an affidavit on behalf of the petitioner, which was received by the
court. The order of Special Term recited the reading and filing of all four affidavits.
The Appellate Division found that "although no notice of motion was served, the
[Supreme] court considered the oral motion and also the affidavits in support of the
motion in pursuance of the discretion conferred upon it by CPLR 2214 (c)" It held
that such consideration was a proper exercise of discretion. Notably, there was no
objection in the Supreme Court to the procedure followed and the affidavits were part of
the record on appeal.
In Kaiser v. J & S Realty, the plaintiffs commenced the
action on April 15, 1988 by the service of a summons and verified complaint upon the
Secretary of State pursuant to Business Corporation Law 306. On June 17, 1988, the court
granted in plaintiff’s favor. Subsequently, the defendant moved orally to vacate the
default judgment arguing he was never served with the summons and complaint. The Supreme
Court decided the motion to vacate the default judgment and the plaintiffs appealed. The
Appellate Division reversed. The court held that even though there is not a per se rule
disallowing oral motions, affidavits or other relevant evidence must be presented by the
movant. There was no evidentiary showing made by the defendant in this case. Therefore,
the Appellate Division could not uphold the court’s determination.
CHARTING YOUR OWN COURSE: WAIVER OF PROCEDURAL RULES
As the cases demonstrate, procedural irregularities are overlooked
where the parties chart their own course of litigation. In Osterling v. Osterling,
both parties asked the trial court to determine the meaning of part of a stipulation
entered on the record, which disposed their marital property, in plaintiff’s action
for divorce. Plaintiff’s motion to vacate the order determining the request, because
of inter alia 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 stated that the review undertaken by the
court was requested by the parties. The court reasoned that 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.
COURTS INDIVIDUAL MOTION RULES PERMISSION TO MAKE MOTION
Soon after the Individual Assignment System was adopted, many judges
began establishing their own rules for practice in their parts. It was common for each
judge to disseminate his or her own "information sheet" containing the rules of
practice and procedure in that courtroom. While well-intentioned, this created chaos and
confusion due to the fact that each judge had his own motion day or time, and many judges
required oral argument of motions. Moreover, before making a motion, some judges went so
far as to require attorneys to obtain the permission of the Court. This practice has been
virtually eliminated by Appellate intervention.
In Grisi v. Shainswit, the "Information Sheet" made
available to counsel by the Justice in the IAS Part X provided that motions may not be
made without a pre-motion conference. At a pretrial conference the defendants moved
orally, pursuant to CPLR § 3043(b), for the deposition of the plaintiff and further
physical examination. The defendant’s motion was denied. On July 1, 1986, the
defendants submitted a proposed order which reflected the denial, along with notice of
settlement, but no further action was taken on the proposed order. Thereafter, on July 3,
1986, the defendants "served a request for a premotion conference, seeking permission
to move to strike the note of issue and statement of readiness on the ground that the
action was not ready for trial." They grounded this request their entitlement to
another physical examination and deposition of the plaintiff, and to their right to
receive duly executed authorizations for the release of his employment and tax records. In
response to this request, a conference was scheduled for July 14, 1986, and a preliminary
conference order was issued which directed the plaintiff to provide the defendants with
the authorizations. Defendants requests for a new deposition and a second physical
examination were denied. However, the IAS judge refused to enter a written order to that
effect, nor would he permit the court reporter to record the ruling. The administrative
judge was prevailed upon to compel the court to issue a written order of the denial, or in
lieu thereof, to permit a transcription of the denial, but these requests also failed.
Defendants, relying on New York law, commenced a mandamus proceeding to compel the
production of the court’s denial in some form.
The Appellate Division noted:
[there was a] growing tendency in the Supreme Court civil trial parts
to condition the making of a written motion on prior judicial approval. In certain
instances, a refusal to allow the motion is accompanied by an express, but oral, denial of
the motion. In others, the request is simply refused, effectively resulting in a denial of
the motion. In either event, there is no record available for appellate review. In some
instances, as here, there is not even a written order.
The court stated its difficulty with this practice; "it tends to
frustrate a litigant’s statutorily provided right of appeal from an intermediate
order." While emphasizing that courts have the inherent power and responsibility to
control their calendars and to supervise the course of litigation before them, it
recognized that "fundamental rights to which a litigant is entitled, including the
opportunity for appellate review of certain orders, cannot be ignored, no matter how
pressing the need for the expedition of cases."
A party cannot be deprived of his right to be heard on a substantive
matter not involving a trial ruling by the simple expedient of denying him the right to
make a written motion or a record, thereby foreclosing the opportunity for appellate
review. At the very least, in instances where the court, in its discretion, refuses to
entertain a written motion, the denial of which would be otherwise appealable had the
motion been made in writing, the putative moving party should be afforded the opportunity
to make a record reflecting the respective positions of the parties on the particular
issue and the court’s reasoning and decision, as well as a recitation of the facts
and documentation that were considered in the court’s determination. We note that the
Uniform Civil Rules for the Supreme Court and the County Court make provision for the
transcription of the court’s directions at a preliminary conference and expressly
state that the transcript "shall have the force and effect of an order of the
court" (22 NYCRR 202.12 [e]). So that there will be no question as to the
appealability of such disposition, however, we would also require that where a party
presents a written order embodying the court’s determination spread on the transcript
that such order be signed.
The court noted in Everitt v. Health Maintenance Center that a
precalendar 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 adversely affected by the order formally moved to vacate
or modify it. The determination of that motion would then be appealable. It now rejected
such a procedure as wasteful in the Individual Assignment System.
The Everitt court cautioned that its decision should not be
construed as encouraging the practice of conditioning making written motions upon prior
judicial consent. It believed that the determination was best left to the discretion of
the particular trial court under the present system. However, it required that when an
oral request to make a formal motion is refused or the motion is considered on the merits,
a record must be made.
The Appellate Division, First Department subsequently held that, as a
matter of law, a court cannot refuse to entertain a motion. Such a direction is
inconsistent with the provisions of the CPLR, which gives the parties an opportunity to
make a record, together with the court’s reasoning and decision. Here, it was error
for the IAS Justice to schedule a conference, adjourn the motion without a date, and
direct that no motion for summary judgment may be made until discovery was completed.
In Matter of Hochberg v. Davis, a CPLR article 78 proceeding,
the Appellate Division directed the respondent Justice to rescind his motion upon calendar
rules conditioning the making of written motions on prior judicial consent. The First
Department cautioned the courts to ensure that the fundamental rights to which a litigant
is entitled are not ignored, "no matter how pressing the need for the expedition of
cases." The court stated that the practice of conditioning the making of motions upon
prior judicial approval may prevent a party from exercising the option to move for the
relief to which he or she may be entitled, and may also run afoul of certain statutory
provisions such as CPLR 3212(a), which authorizes any party to move for summary judgment
in any action after issue has been joined. It also noted that, to the extent that the
"Information Sheets" of the various parts of the Supreme Court are viewed or
enforced as "rules," they are not in compliance with 22 NYCRR 202.1 (c) because
they were not filed with the Chief Administrator of the Courts, in accordance with 22
NYCRR 9.1.
SHARP PRACTICE
Attorneys can be sanctioned for sharp motion practice. In Rosenman
Colin Freund Lewis & Cohen v. Edelman, a $500 sanction was imposed upon counsel
pursuant to 22 NYCRR 130-1.1 (c) (2) for violating the "norms" of motion
practice. Counsel had served a notice of motion returnable in the Appellate Division,
accompanied by plainly deficient supporting affidavits, stating that additional material
would be provided in the future. "The affirmation in support of the motion asserted
without pretense of argument that the court’s affirmance had the effect of depriving
his clients of their constitutional right to counsel, and was based on various incorrect
findings of fact and conclusions of law." It then concluded with the statement that
"a further more detailed affirmation will be furnished in support of this
motion." The motion was served on November 23 and was returnable on December 27,
1990, five weeks after counsel served it. On December 20, at 7:45 P.M., after the attorney
completed her opposition papers, (which she instructed her office were to be served the
next morning), a 28-page "Supplementary Supporting Affirmation" was served upon
her. On the next day, December 21, several hours after he had been served by hand with the
opposition, the attorney advised his adversary that he had requested and obtained an
adjournment of the motion from December 27 to January 7. Additionally, on December 21, the
attorney served a 28-page "Corrected Supplementary Supporting Affirmation." This
affirmation, however, did not indicate what was being corrected in the previous
affirmation.
The Appellate Division stated that it could not overlook the
attorney’s ignorance of well-understood norms of motion practice, which require the
moving party to set forth whatever it is he has to say in papers accompanying the notice
of motion. Here, the affirmation in support of the motion was plainly deficient. Realizing
as much, he set the return date five weeks ahead and promised to furnish additional
supporting papers in the future. This was sanctionable.
THE COURT MAY NOT GRANT SUA SPONTE RELIEF
A court may not grant sua sponte relief which substantially
prejudices a party on the court’s own motion, unless expressly authorized to do so by
statute or other authority. Furthermore, a court may not grant sua sponte relief
upon an ex parte communication. In Coleman v. Coleman, the court originally
awarded plaintiff custody of the youngest child and exclusive possession of the marital
residence, but denied interim financial relief. However, based on an ex parte
communication by the plaintiff, the court sua sponte substituted an interim award
of child support in the amount of $75 per week. The Appellate Division held that this
procedure was improper, citing Judiciary Law, Art 15; The Code of Professional
Responsibility, EC 7-35; DR 7-110, subd [B]. In Leibowits v. Leibowits, the husband
sought an order directing his wife to account for, and turn over to him, the contents of a
safe deposit box which was under her sole control. The box contained clearly separate
property as well as securities, property inherited by the husband from his mother, and
marital assets. The trial court ordered the wife to account for the marital assets in the
deposit box and to give her husband his inherited assets, but denied the motion insofar as
it related to the marital property, provided that the 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 any
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. The court
stated that "due process requires written notice from the moving spouse that he or
she seeks possession of the marital assets or a restraint on their disposition."
Without such notice, the court may not act.
In Brody v. Brody, a matrimonial action, plaintiff wife appealed
from an order of the Supreme Court which 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. The court 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."
In De Pan v. First Natl. Bank, the Appellate Court held that,
"in the absence of a CPLR 3212 motion for summary relief by defendant bank or
third-party defendant, neither Special Term nor this court can, sua sponte, grant
such relief." The third-party defendant moved, pursuant to CPLR 3211 to dismiss the
complaint, but the motion was never converted to a summary judgment motion. Special Term
stated, "[a] court may grant undemanded relief only if there is no substantial
prejudice to the adverse party.
In Ressis v. Mactye, Special Term granted defendants’
motion to strike the plaintiff’s interrogatories and, sua sponte, granted
summary judgment which dismissed the complaint for failing to state a cause of action. The
plaintiff then appealed. The Appellate Division held that there must be a reversal of the
Special Term because neither party moved for summary relief. "CPLR 3212[a] clearly
states that, [a]ny party may move for summary judgment in any action, after issue has been
joined." "Accordingly, Special Term was without authority to grant sua sponte
relief under CPLR 3212." Furthermore, the court lacked the authority to grant summary
judgment pursuant to CPLR 3211[c], since neither party had made such a motion. The court
rejected defendants’ contention that it could grant sua sponte summary relief
under CPLR 3017[a], holding that "[a] court may grant undemanded relief only if there
is no substantial prejudice to the adverse party."
In W.I.L.D. W.A.T.E.R.S., Ltd. v. Martinez, the plaintiff
commenced an action for specific performance, related injunctive relief, and damages. By
Order to Show Cause, the plaintiff moved to enjoin defendants from tampering with the
premises. A temporary restraining order was granted by the court and served on defendants
by May 9. The return date was set for May 13. Appellant’s brief represented that the
opposition papers were submitted on the return date [to the court and to plaintiff’s
counsel] directly before the hearing, but they were not allowed due to their untimeliness.
The motion was treated as unopposed and the court granted the injunction, enjoined
appellant from tampering with the property, granted possession to plaintiff, allowed
plaintiff’s rent to be put into an escrow account, awarded plaintiff an option to buy
the property and would have the monies of the sale placed in a constructive trust for the
plaintiff’s benefit. Appellant Nelson appealed the Supreme Court’s ruling and
the Appellate Division reversed. The court noted that "since it was not demanded in
the Order to Show Cause and yet substantially prejudiced Nelson, the relief specified in
the third, fourth and fifth ordering paragraphs was indefensibly gratuitous."
FORM OF ORDER
The Civil Practice Law and Rules dictate the form of orders, it states
an order must be in writing
and be the same in form whether made by a court or a judge out of
court." "An order determining a motion which is made upon supporting papers,
must be signed or initialed by the judge who made it, with the judge’s signature or
initials by the judge who made it, state the court of which he is a judge and the place
and date of the signature, recite the papers used on the motion, and give the
determination or direction in such detail as the judge deems proper." "An order
of an appellate court must be signed by a judge of that court. However, upon written
authorization by the presiding judge, it may be signed by the clerk of the court or, in
his absence or disability, by a deputy clerk.
SETTLEMENT AND ABANDONMENT OF ORDER
When settlement of an order is directed by the court, a copy of the
proposed order, with notice of settlement, must be served on all parties. "The notice
is returnable at the office of the clerk of the court in which the order or judgment was
granted, or before the judge if the court has so directed or if the clerk is unavailable
shall be served on all parties," either by personal service or by mail. Where
personal service of the proposed order with notice of settlement is made, it must not be
less than 5 days before the date of settlement. Where service is by mail, it must be
mailed not less than 10 days before the date of settlement. Proposed counter-orders or
judgments shall be made returnable on the same date and at the same place, and shall be
served on all parties. If such service is made in person, it shall be made not less than
two days, or if made by mail, not less than seven days , before the date of settlement.
Proposed orders or judgments, with proof of service on all parties
where the order is directed to be settled or submitted on notice, must be submitted for
signature, unless otherwise directed by the court, within sixty days after the signing and
filing of the decision directing that the order be settled or submitted. An order must be
submitted within sixty days after the signing and filing of the decision that directs it
be settled or submitted. Orders which are not submitted within the sixty day period will
be deemed abandoned, unless good cause is shown for failure to do so. When a party fails
to adhere to the sixty day period, it will not be sufficient to show "good
cause" that the adverse party was not prejudiced by such actions. In Tuller v.
Tuller, the Appellate Division affirmed an order of the Supreme Court which granted
the husband’s motion to deem the court’s February 1987 decision, which granted
the wife a divorce, support, maintenance and equitable distribution, abandoned by her
because she did not submit a judgment of divorce for signature until October 1988. The
court held that "demonstrating lack of prejudice to the other side does not
constitute good cause."
In Feuerstein v. Feuerstein, the Appellate Division reversed an
Order and Judgment of the Supreme Court that was signed after being submitted more than 60
days after the motion was granted. The Appellate Division held that "a prevailing
party must provide the court with a proposed order or judgment for signature, unless
otherwise directed by the court, within 60 days after the signing and filing of the
decision directing that the order be settled or submitted." The courts will consider
a party’s failure to comply with that rule an abandonment, unless that party shows
good cause for the delay as per 22 NYCRR 202.48(b). In this case, "Special
Term’s decision directing the submission of an order was dated May 10, 1989, and a
proposed order was apparently not submitted until sometime in October 1989." Since
the "plaintiff failed to submit the proposed order within 60 days of the trial
court’s decision, and failed to show good cause for the delay," the motion was
found to be abandoned."
In Levine v. Levine, the Supreme Court awarded the wife counsel
fees of $7,500 on July 25, 1989, in a memorandum decision directing the wife’s
attorney to "settle order." "However, no order was prepared and submitted
by the plaintiff’s attorney until September 28, 1989, three days after the expiration
of the 60 day period in which the order should have been submitted." The
husband’s attorney argued that the order should not be signed. Counsel for the
husband contended that, pursuant to 22 NYCRR 202.48, the wife’s motion for counsel
fees should be dismissed as abandoned. On October 10, 1989, the Supreme Court ruled that
"no order having been received within 60 days from the July 25, 1989 decision of this
court, the application for attorney’s fees is deemed abandoned, unless a proper order
is timely submitted with a satisfactory explanation for the delay." The wife’s
attorney submitted a "supplemental affirmation," in which he explained that his
repeated inquiries at the clerk’s office failed to disclose, prior to September 1989,
that the court had decided the motion. "As soon as counsel learned of the
court’s decision, an order was submitted for signature." "The court
accepted this explanation and signed the wife’s proposed order." The Appellate
Division held that the Supreme Court properly excused the wife’s three day delay in
tendering her proposed order for signature.
In Funk v. Barry, the Court of Appeals held that the sixty day
requirement in 22 NYCRR 202.48(a), for the submission of order and judgments after the
court has determined a motion or action, does not apply unless the decision explicitly
calls for the submission or settlement of an order or judgment. The Court pointed out that
where the decision states "submit order," the procedure is for the winner to
prepare and submit the order or judgment to the court without notice to the loser, and
then serve it on the loser after it is signed and entered. Where the decision provides
"settle order," the procedure in 22 NYCRR 202.48(c) must be complied with. In a
"settle order" the winner must prepare the proposed judgment and serve it with a
notice of settlement on the loser prior to submission to the court.
ENTRY AND FILING OF ORDER - METHOD OF SERVICE OF ORDER
An order determining a motion must be entered and filed in the office
of the clerk of the court where the action is triable. All papers used on the motion and
any written opinion or memorandum must also be filed with that clerk, unless the order
dispenses with the filing. If a party fails to file any papers required to be filed, the
order may be vacated as irregular, with costs.
NECESSITY FOR SERVICE OF THE ORDER - NOTICE OF ENTRY
A party must serve a copy of the order, with notice of entry, on the
other party’s attorney(s) (and on the other party, if directed to do so in the
order). Unless an order directs otherwise, it may be served by mail, or by personal
delivery, to the office of the other attorney(s). A notice of entry indicates the date
that the order was filed and recorded in the County Clerk’s office.
Serving a copy of the order with notice of entry begins the period in
which the other party has an opportunity to appeal. Unless the order is served upon the
other party’s attorney, the time for compliance will not begin.
In Bianca v. Frank, the issue before the Court of Appeals was
whether petitioner’s attorney was required to be served with a copy of the
determination of the Police Commissioner to commence the statute of limitations of the
Nassau County Administrative Code. The appellants argued that since the section explicitly
stated that the 30 days is to commence "from the service of a notice of such
determination upon the member," no requirement to serve the member’s attorney
may be implied or imposed as a prerequisite for the running of the time limitation. The
Court of Appeals rejected this argument because it contravenes basic procedural dictates
and the fundamental policy considerations which require that, once counsel has appeared in
a matter, the statute of limitations cannot begin to run unless that counsel is served
with the determination of the order or judgment sought to be reviewed. Once a party
chooses to be represented by counsel in an action or proceeding, the attorney is deemed to
act as his agent in all respects relevant to the proceeding. Any documents, particularly
those purporting to have a legal effect upon the proceeding, should be served on the
attorney. This is considered "the traditional and accepted practice which has been
all but universally codified." While a legislative enactment can specifically exclude
the necessity of serving counsel, any intention to depart from the standard practice
"must be clearly established and stated in unmistakable terms." Short of that,
any general requirement that notice must be served upon the party must be read in the
accepted sense which requires that notice be served upon the party’s attorney.
In Raes Pharmacy, Inc. v. Perales, the Appellate Division noted
that there was no statutory requirement that all court orders must be served in order to
be effective. The court held that it is axiomatic that, before an order may be enforced, a
notice of the order must be given to the party against whom it is sought. It is a
long-established general principle that service of an order on an adverse party is
necessary to give it validity. The publication of the court’s decision in the New
York Law Journal is insufficient to give the necessary notice. New York Executive Law
provides for notice to attorneys at law by state bodies or officers. C.P.L.R. § 2103(b)
requires that papers to be served upon a party in a pending action shall be served upon
the party’s attorney. The term "papers" includes notices, pleadings, orders
and judgments.
McCormick v. Mars Associates, Inc. involved an action to recover
damages for personal injuries. Defendants appealed from an order of the Supreme Court,
which conditionally granted plaintiff’s motion to strike defendant’s answer for
failure to comply with a prior order directing an examination before trial, discovery and
inspection, and an order which denied their cross motion to vacate and/or resettle the
order. In reversing, the Appellate Division noted that where the rights of a party may be
affected by an order, the successful moving party, in order to give validity to the order,
is required to serve it on the adverse party. Here, questions of fact and credibility, as
to whether the order was duly served on the defendant could not be resolved on appeal. The
court held that it was error to grant relief to plaintiff on the ground that defendant
failed to obey the order without first determining whether he had been duly served with
it.
MOTIONS TO REARGUE, RENEW OR RESETTLE
The CPLR provides that a motion "for leave to renew or to reargue
a prior motion, for leave to appeal from, or to stay, vacate or modify an order, [must] be
made on notice to the judge who signed the order, unless he is for any reason unable to
hear it[.]" If the order was made upon a default, the motion may be made on notice to
any judge of the court. If the order was made without notice, the motion may be made
without notice to the judge who signed it, or on notice to any other judge of the court. A
motion made under this rule to one other than a proper judge must be transferred to the
proper judge.
MOTION TO REARGUE
The purpose of a motion to reargue is to convince the court of the
legal incorrectness of its decision. The movant must show that, in making the original
determination, the court overlooked a principle of law or misapprehended relevant facts
which would have had a controlling effect. Reargument serves to provide the party with an
opportunity to advance arguments similar to those made on the original application, and
should not be employed as a device for the unsuccessful party to assume a different
position inconsistent with that taken on the original motion. A motion for reargument is
made on the papers submitted for the original motion, and counsel may not present new
facts before the court. A motion for reargument is not an appropriate vehicle for raising
new questions. The court has also determined that a final judgment made after trial is not
subject to a motion to reargue; under no circumstances may a final judgment rendered after
trial be subject to a motion to reargue.
Appellate courts have ruled that a motion to reargue may not be made
after the expiration of the time to appeal an order, because this would permit
circumvention of the prohibition against extending the time to take an appeal from the
original order. The New York Court of Appeals overruled the Appellate Division and
commented that, "regardless of statutory time limits concerning motions to reargue,
every court retains continuing jurisdiction to reconsider its prior interlocutory orders
during the pendency of the action."
It has been held by some lower courts that the proper procedure in
seeking the reargument of a motion is to submit to the justice who decided that motion a
short affidavit setting forth the decision, the asserted grounds for reargument, and a
request for an Order to Show Cause. The rationale for this procedure is so that one may
simply conclude the matter by refusing to sign the Order to Show Cause.
MOTION TO RENEW
An application for leave to renew must be based upon additional
material facts which existed at the time the prior motion was made but were not then known
to the party seeking leave to renew, and therefore were not made known to the court. The
movant must offer a valid excuse for not submitting the additional facts in the original
application. The remedy is not available where a party has proceeded on one legal theory
and thereafter sought to renew on a different legal theory. The application must be
supported by new facts or information which could not have been made readily and with due
diligence a part of the original motion. Therefore, a motion to renew may encompass new
matter that was not available prior to the court’s decision on the prior motion. It
is important to note that the time within which to make a motion to renew is not limited
to the time within which an appeal could be taken. The court does not support a
party’s characterization of a motion as one to "renew and reargue The court will
make the appropriate determination as to the characterization of the motion.
The general rule is that, if the relief sought upon a second motion is
the same as that sought upon a prior motion, and the second motion is only distinguished
by different grounds set forth, the second motion is in the nature of renewal, and barred
by the doctrine of the law of the case. Where new facts are alleged in support of a motion
to renew a prior motion, which facts were available at the time of the prior motion, there
must be a sufficient explanation of why these facts had not been presented in the earlier
motion. It is imperative that the movant provide a justified excuse for not previously
disclosing the pertinent facts before the court.
MOTION FOR RESETTLEMENT
"Resettlement of an order is a procedure designed solely to
correct errors or omissions as to form, or for clarification [and] may not be used to
effect a substantial change in or to amplify the prior decision of the court." If the
change sought is substantial in nature, relief cannot be had by way of a motion to
resettle an order. The purpose of resettlement is to revise an order to reflect the
court’s decision. Resettlement is not to be used to effect a substantive change in or
to amplify a prior decision of court.
A court’s denial of a motion to resettle a substantive portion of
an order is not appealable.
When there is an inconsistency between a judgment and the decision upon
which it is based, the decision controls, and the inconsistency may be corrected either by
a motion for resettlement or on appeal.
APPLICATIONS TO ORIGINAL JUDGE
Where the prior order is an ex parte order or an ex parte
motion to vacate, renew or reargue, it may be made before the judge who made the original
order. If the motion to vacate, renew or reargue is made on notice, then the motion need
not be returnable before the original judge who made the order.
C.P.L.R. § 2221 provides that a motion to modify an order shall be
made on notice to the judge who signed the order, unless he is unable to hear it. This
reflects the general policy that judges shall not pass on or review a matter already seen
by another judge of equal authority or coordinate jurisdiction. An order of one judge
cannot be set aside or materially modified by another judge of equivalent jurisdiction.
"Setting aside the judicial act of one judge by another of co-ordinate jurisdiction
is avoided, wherever possible, as not conducive to the orderly administration of
justice." It is not proper practice to seek a review of the order of one special term
justice by another special term justice. However, with the advent of the Individual
Assignment System, it has been held by some Appellate Courts that it is not an abuse of
discretion to fail to transfer a motion to reargue or renew to the Justice who made the
original order. C.P.L.R. § 2221 provides that such motion be made to the judge who signed
order "unless he is for any reason unable to hear it," and the motion is before
a different Justice because of the Individual Assignment System, whose purpose satisfies
the exception to the statute.
REVIEW OF EX PARTE ORDERS BY APPELLATE DIVISION
No appeal lies from an order which is obtained without notice. A party
often seeks to obtain a stay or a provisional remedy, such as a temporary restraining
order, pending the determination of a motion. The proposed Order to Show Cause containing
the requested interim relief is presented to the court which grants the order but strikes
the provisional relief sought. On other occasions, an adversary may obtain an Order to
Show Cause with interim relief that his opponent wants to have vacated because the
opponent will suffer irreparable harm during the time prior to the determination of the
motion. The proper remedy is to go to the full bench of the Appellate Division or to a
Justice of the Appellate Division.
The Second Department has construed the words ex parte to
mean all stipulations where neither oral nor written notice of the request for relief is
given. A sua sponte order made in the presence of counsel is not considered ex
parte. Where an ex parte order is obtained by Order to Show Cause, the preferred (although
not required) method is to first move in the issuing court to vacate or modify the order.
If a stay of the ex parte order is desired, the court may grant it, pending the
determination of the motion. If the original court refuses to grant the application for a
stay, an application may be made to the Appellate Division for a stay.
The full bench of the Appellate Division or any Justice of the
Appellate Division may vacate or modify, ex parte, any order granted by any court or judge
without notice to the adverse party from which an appeal would lie in the Appellate
Division. It may also grant any order or provisional remedy applied for without notice and
denied by a court or judge from which an appeal would lie in the Appellate Division.
Oral application to vacate or modify an ex parte order
should first be made to any justice of the Appellate Division. If he or she refuses to
vacate the ex parte order, then a motion should be made, preferably by Order
to Show Cause, to the full court to vacate the ex parte order. However, only
the full bench can grant an ex parte order which was denied by the lower
court.
The recent adoption of extensive calendar practice rules for
matrimonial actions, in an attempt to expedite such matters, has lead to a new problem. It
is not uncommon for a judge to make an order at a conference which affects a substantial
right of a party, such as an order of preclusion, if disclosure is not completed by a
fixed date. Such an order is not appendable. While such an order would appear to be
considered to be ex parte or sua sponte, the Appellate
Division in the Second Department does not consider an order made upon oral application ex
parte or sua sponte where counsel is present. In such a case, an
application must be made on notice to vacate that order, and if it is denied, an appeal
may be taken.
