Article 22 Stay, Motions, Orders & Mandates

Question 1

CPLR 2201
Select all correct statements:
(a)   Generally a stay of the proceedings may be granted by the court in which the action is pending.
(b)   Generally a stay of the proceedings may only be granted by the Appellate Division in the department where the action is pending.
(c)   A motion is an application for a judgment.
(d)   A motion is an application for an order.

Answer 1

Answer: (a) and (d)
CPLR 2201 provides that generally the court in which an action is pending may grant a stay of the proceedings. Thus, choice (a) is correct. CPLR 2211 provides that a motion is an application for an order. Thus, choice (d) is correct.

Question 2

   CPLR 2211
Select all correct answers.
A motion on notice is made when:
(a)   a copy of the moving papers is filed with the court
(b)   a notice of the motion is served
(c)   argument on the motion is heard in court
(d)   an order to show cause is served.

Answer 2

  Answer: (b) and (d)
CPLR 2211 provides that a motion on notice is made when a notice of the motion or an order to show cause is served.

Question 3

   CPLR 2211
An application to a court by one of the parties to an action, or by his counsel, in order to obtain an order of the court resolving a preliminary matter in the action, is most properly known as:
(a)   a demand
(b)   a stipulation
(c)   a motion
(d)   an exception.

Answer 3

 Answer: (c)
CPLR 2211 provides that a motion is an application for an order. Thus, choice (c) is the correct answer. Motions are generally used when a party seeks the resolution of a preliminary matter in an action.

Choice (a) is incorrect since a demand usually refers to a formal request.
Choice (b) is incorrect since a stipulation generally refers to a binding agreement between parties or their counsel.
Choice (d) is incorrect since an exception generally refers to a formal objection at trial.

Question 4

  CPLR 2212
An ex parte motion in an action in the Supreme Court may be made to a justice out of court:
(a)   anywhere in the state
(b)   only in the judicial department of the action
(c)   only in the county where the dispute arose
(d)   only in the judicial district of the action.

Answer 4

 Answer: (a)
CPLR 2212(b) states that such a motion may be made at a motion term or to a justice out of court in any county in the state. Choice (a) is therefore correct.

Question 5

 CPLR 2214
Generally answering affidavits to a notice of motion must be served at least _______ days before the time at which the motion is noticed to be heard (i.e., the return date).
(a)   two
(b)   three
(c)   four
(d)   five.

Answer 5

  Answer: (a)
CPLR 2214(b) states that generally answering affidavits shall be served at least two days before the return date. NOTE, however, that answering affidavits must be served at least seven days before the return date if a notice of motion served at least sixteen days before the return date so demands.

Question 6

 CPLR 2214
A notice of motion and supporting affidavits must be served at least __________ days before the time at which the motion is noticed to be heard (i.e., the return date).
(a)   three
(b)   five
(c)   eight
(d)   ten.

Answer 6

Answer: (c)
CPLR 2214(b) states that a notice of motion and supporting affidavits shall be served at least eight days before the return date.

Question 7

 CPLR 2214
An order to show cause shall be served:
(a)   in the same manner as a summons
(b)   as specified in the order
(c)   only by personal service
(d)   only by the sheriff.

Answer 7

  Answer: (b)
CPLR 2214(d) states that an order to show cause is to be served at a time and in a manner as specified in the order.
Choices (a), (c) and (d) are unsupported by the CPLR.

Question 8

  CPLR 2214
In the case of an order to show cause against a State body or officer (i.e., a State agency), service must be made:
(a)   only upon the defendant or respondent
(b)   upon the defendant or respondent, or the Attorney-General
(c)   only upon the Attorney-General
(d)   upon the defendant or respondent and an Assistant Attorney- General in the county of venue.

Answer 8

 Answer: (d)
CPLR 2214(d) provides that an order to show cause against a State body or officer must be served on the defendant or respondent and the Attorney-General by delivery to an Assistant Attorney-General at an office of the Attorney-General in the county in which venue is designated. If no such office exists in that county, then the office nearest that county.

Question 9

  CPLR 2214
If a party serves a notice of motion at least sixteen days before the time set for hearing of the motion (i.e., the return date), he may include in his notice a requirement that answering affidavits be served at least ______ days prior to the return date.
(a)   three
(b)   four
(c)   five
(d)   seven.

Answer 9

Answer: (d)
CPLR 2214(b) provides that if a party serves a notice of motion at least sixteen days before the return date, answering affidavits shall be served at least seven days before the return date if the notice of motion so demands.

Question 10

 CPLR 2214
In a pending action, plaintiffs attorney, whose office is directly across the street from defendant’s attorney, serves a notice of motion upon defendant’s attorney by mail. What is the minimum number of days prior to the time set for the hearing of the motion (i.e., the return date) that the notice of motion must have been served (i.e., mailed)?
(a)   seven
(b)   eight
(c)   ten
(d)   thirteen.

Answer 10

 Answer: (d)
CPLR 2214(b) provides that a notice of motion and supporting affidavits shall be served at least eight days before the return date. Additionally, CPLR 2103(b) provides that if service of a paper is by mail, five days shall be added to the prescribed period. Hence, the notice of motion must be served (i.e., mailed) at least thirteen days before the return date (eight days plus five days).

Question 11

   CPLR 2215
At least ______ days prior to the time at which a motion is noticed to be heard, a party may serve upon the moving party a notice of cross-motion, assuming no demand for it was made under CPLR 2214(b).
(a)   two
(b)   three
(c)   five
(d)   seven.

Answer 11

Answer: (b)
CPLR 2215 generally provides that at least three days prior to the time at which a motion is noticed to be heard, a party may serve upon the moving party a notice of cross-motion.

Question 12

      CPLR 2217
Select all correct answers:
(a)   Any motion may be referred to a judge who decided a prior motion in the action.
(b)   An ex parte motion shall be accompanied by an affidavit stating the result of any prior motion for similar relief and specifying the new facts, if any, that were not previously shown.
(c)   If a motion is made to a judge who is unable to hear it, it may be transferred by the clerk.
(d)   If a judge is unable to hear a motion, it may be transferred by stipulation of the parties to any judge to whom the motion might originally have been brought.

Answer 12

 Answer: (a), (b) and (d)
Choice (a) is clearly correct under CPLR 2217(a).
Choice (b) is clearly correct under CPLR 2217(b).
Choice (c) is incorrect under CPLR 2217(c).
Choice (d) is clearly correct under CPLR 2217(c).

Question 13

   CPLR 2218
When an issue of fact is raised on a motion:
(a)   the issue must be tried by a jury
(b)   the issue must be tried by the court
(c)   the issue must be tried by a referee
(d)   the issue may be tried by the court or a referee, and in some instances a jury trial is available.

Answer 13

Answer: (d)
CPLR 2218 states that the court may order an issue of fact raised on a motion to be separately tried by the court or a referee. Additionally, if such issue is triable of right by jury, the court must give the parties an opportunity to demand a jury trial of the issue. Thus, choice (d) is correct.

Question 14

    CPLR 2219
Generally, an order determining a motion other than one relating to a provisional remedy shall be made within ______ days after the motion is submitted for decision.
(a)   thirty
(b)   sixty
(c)   ninety
(d)   one hundred and eighty.

Answer 14

 Answer: (b)
CPLR 2219(a) provides that such a motion shall be determined within sixty days. If the order relates to a provisional remedy, it shall be determined within twenty days.

Question 15

     CPLR 2220
An order determining a motion should be entered and filed in the office of:
(a)   the clerk of the court where the action is triable
(b)   the judge who issued the order
(c)   the prevailing party
(d)   the clerk of the county where the cause of action accrued.

Answer 15

 Answer: (a)
CPLR 2220(a) states that an order determining a motion shall be entered and filed in the office of the clerk of the court where the action is triable. Thus, choice (a) is correct.

Question 16

  CPLR 2221
A key difference between a motion for leave to reargue and a motion for leave to renew is that:
(a)   A motion for leave to reargue is based upon matters of law or fact allegedly overlooked or misapprehended by the court in determining the prior motion, while a motion for leave to renew is based upon new facts not offered on the prior motion.
(b)   A motion for leave to renew is based upon matters of law or fact allegedly overlooked or misapprehended by the court in determining the prior motion, while a motion for leave to reargue is based upon new facts not offered on the prior motion.
(c)   Both motions are based on new facts, but a motion for leave to reargue must contain reasonable justification for the failure to present such facts in the prior motion.
(d)   Both motions are similar except a motion for leave to reargue must be made to a judge other than the one who decided the prior motion.

Answer 16

Answer: (a)
Choice (a) is supported by CPLR 2221(d) and CPLR 2221(e).
Choice (d) is incorrect because CPLR 2221(a) indicates that the judge who decided the prior motion should as a general rule, subject to a few exceptions, hear the motion for leave to renew or reargue.
Choices (b) and (c) are incorrect because a motion for leave to reargue is based upon matters of law or fact allegedly overlooked or misapprehended by the court and a motion for leave to renew is based upon new facts not offered on the prior motion.

Question 17

  CPLR 2222
Select the best answer.
(a)   At the request of any party the clerk generally must docket as a judgment an order directing the payment of money.
(b)   An officer to whom a mandate is delivered to be executed must execute the mandate according to its command.
(c)   An officer to whom a mandate is delivered to be executed must deliver without compensation to the person served, if requested, a copy of the mandate.
(d)   Only (a) and (b) are correct.
(e)   (a), (b), and (c) are all correct.

Answer 17

Answer: (e)
Choice (a) is clearly correct under CPLR 2222.
Choices (b) and (c) are clearly correct under CPLR 2223(1) and (3).