Motion Practice in NY

Question 1

MOTION

• Def
• filing fee

Answer 1

Def- an application for an order of the court

$45 filing fee for motions in NY

Question 2

Motions on Notice

• what is it
• what do you serve the adversary
• when is a motion on notice “made

Answer 2

• most common way to make a motion in NY
• gives the adversary an opportunity to be heard
• Serve notice of motion that specifies return date AND affidavits (good faith if discovery motion, in support for all motions) are served on the other party. [may also serve memo of law but that depends on type of motion]
• Motion is “made” when a notice of the motion or an order to show cause is served.
• Served by mail? – the moment of service occurs when the stamped and properly addressed envelope containing the papers is dropped in the mailbox

REMEMBER:
Where a period of time prescribed by law is measured from the service of a paper and service is by mail. Five days shall be added to the prescribed period.

Question 3

Def: Return Date

Answer 3

The day upon which the motion papers are presented to the court is called the “return date” A/K/A “hearing date” of the motion

Question 4

How much advance notice must be given to the opponent?

Answer 4

Moving party must serve the motion papers on the opponent at least 8 days before the return date. Then any opposition papers must be served on the moving party at least 2 days before the return date. (NOTE: this 8 & 2 method does not leave any time for reply to opposition.)

OTHER METHODS (not from Barbri)

• 16-7-1: personal service 16 before return; opposition 7 before return; 1 day reply
• 21-7-1: mail 21 days before return; opposition at least 7 before return; at least 1 day to reply

Question 5

Filing motion papers w/ the court

Answer 5

All motion papers, those of the moving party as well as the opposing papers, must be filed with the court no later than the return date. The court begins the decision- making process on the return date and then issues an order either granting or denying the motion

Question 6

Order to Show Cause

• def
• procedure

Answer 6

DEF- This is an alternative way to make a motion on notice. The order to show cause is a preliminary order, signed ex parte by a judge, directing the adversary to “show cause,” on a date specified by the judge, why the motion should not be granted. The judge, rather than the party, is giving the notice of motion

PROCEDURE- The moving party drafts the order to show cause and submits it directly to a judge, ex parte, along with the supporting affidavits for the underlying motion. The judge will set the return date in the order and will specify the method of service on the adversary (usually personal delivery). After the order to show cause is signed, the order and the underlying motion papers are then served on the opponent. The opponent may then submit opposition papers on the return date.

Question 7

Why would a party make a motion by order to show cause instead of by notice of motion? (3)

Answer 7

1- accelerates the return date b/c judge can specify a return date that is sooner than the 8-day minimum that would otherwise apply

2- judge can grant immediate stay of the proceedings or a TRO

3- the statute which governs the particular motion may require you move by order to show cause

Question 8

The Deciding Order

Answer 8

• After the return date of a motion on notice, the court’s decision must be embodied in a written ORDER signed by the court and entered with the clerk. The prevailing party (whether it be the moving party or the opponent) serves a copy of the order on the losing party with notice of entry of the order. Even if the court provides the parties with the order, the PREVAILING PARTY MUST SERVE THE ORDER as described above

Question 9

Effects of Service of the Copy of Deciding Order: (2)

Answer 9

1- service of the order is necessary to give effect to the order

2- service of the order starts the running of a 30 DAY TIME LIMIT TO APPEAL THE ORDER.
[remember, if order is served by mail than appellant really has 35 days because of the +5 rule]

Question 10

Appeals of Orders From Motions on Notice

Answer 10

• To appeal from an interlocutory order or judgment a party must FILE and SERVE a notice of appeal w/in 30 days from service of the order or judgment w/ notice of entry.
• Standard = improvident exercise of discretion

NOTE: losing party not required to take an interlocutory appeal, he can wait until there is a final judgment and then appeal everything w/in 30 days of the final judgment.

Question 11

Ex Parte Motion

• Def
• when is it possible
• appealing

Answer 11

• This is a motion in which no advance notice is given to the adversary, i.e., without giving any opportunity to be heard in opposition. The moving party goes straight to the court with the motion papers and requests an order granting the relief sought
• the ONLY time a party should attempt to move ex parte is when a statute explicitly authorizes it (ex- motion for an order devising a method of summons service; motion for an order extending Ps time to serve process)
• NOT APPEALABLE!! order on an ex parte application is not appealable. If the adverse party wants the order vacated he should make a motion to vacate on notice. The order on that motion to vacate would then be appealable.