Motion Practice Flashcards
What is a motion?
Motion = an application for an ORDER of the ct (a request for some type of preliminary or incidental relief in a pending action)
Ex: motion to dismiss; change of venue; amend pleadings; etc
What is a motion on notice & the mechanics of making it?
Motion on notice = gives the adversary an opportunity to be heard in opposition
1) Papers to be served:
A NOTICE of motion (moving party specifies the RETURN DATE [aka hearing date]) AFFIDAVITS of facts (stmts made under oath setting forth facts)
Optional: MEMORANDUM of law (setting ofr the legal arguments)
2) Opposing parties must get motion papers at least 8 DAYS prior to the return date Motion is considered “made” when served on other side (i.e. when the motion papers are mailed; mailbox rule)
3) Both sides file motion and opposing papers w/ court by return date
4) Ct then makes a decision & issues an ORDER either granting or denying motion
Why is an Order to Show Cause used instead of a Notice of Motion?
An Order to Show Cause is an accelerated Motion on Notice signed ex parte by judge, directing other side to “show cause” by a ct-chosen date why the motion should NOT be granted; judge specifies method of service (often personal delivery)
Benefits:
1) accelerates the return date (used in exigent circumstances)
2) judge can grant an immediate stay of the proceedings OR a temporary restraining order 3) the statute which governs the particular motion may REQUIRE it
Procedure:
1) Moving party drafts motion and submits it to judge ex parte w supporting affidavits
2) Judge will set the return date and underlying papers and specify method of service on the adversary
3) Once order is signed, order and underlying papers served on opponent giving notice of motion to be heard and return date
4) Opponent then submits opposition papers on return date
What is the procedure behind the deciding order?
Ct’s decision re: a motion on notice is embodied in a written ORDER (signed by the ct and entered w/ the clerk)
1) The winning party serves a copy of the order on the losing party
2) Effect of serving copies…
Gives effect to the order
Starts the running of a 30-DAY time limit to appeal from the order
3) Appealing an order
NY allows(although a moving party can wait) an immediate appeal of an order from the Supreme Court to the Appellate Division as a matter of right, IF appeal is filed/servedw/in 30 DAYS of service of any order determining a motion on notice
NOTE: On MBE, CANNOT appeal immediate orders until final judgment entered
What is an ex parte motion and its mechanics?
1) Where moving party goes straight to court & requests an order granting the relief sought (i.e., no advance notice is given to adversary)
2) Ex parte motions are ONLY allowed if expressly authorized by specific statutory authorization (so ASSUME a motion must be made on notice, unless a statute provides otherwise)
e. gs: order for expedient service of process; π seeks extension of time to serve process; some provisional remedies
3) No (direct) appeal may be taken from an ex parte order (but CAN make a motion on notice to vacate the ex parte order & if this is denied the aggrieved party can appeal from the denial; this is done to “develop a record”)
What are the mechanics of a motion for TRADITIONAL summary judgment (MSJ)?
1)Rule: moving party may show, before trialthat even thought the pleadings are sufficient on their face “there is no genuine issue of material fact requiring trial.” Granting MSJ means that the matter can be decided as a matter of LAW. NOTE: if discussing MSJ (in an essay), ALWAYS discuss the underlying c/a!
2) Timing:
MSJ MUST be made AFTER answer is served; EITHER party can move for SJ w/ respect to any claim or defense asserted in the pleadings Moving party has 120 DAYS from the notice of issue (i.e. cases is marked on trial calendar) UNLESS moving party shows “good cause” (NOTE: procedural excuse, so strength of motion on the merits does NOT qualify as good cause)
3) Evidence used in MSJ: Moving party must submit evidence in the form of affidavits, relevant docs or discovery materials Affidavits must come from party w/ personal knowledge of the facts Opponent can defeat motion using same type of evidence to show material issue of triable fact EXISTS Opponent can also submit affidavit est. that he is not yet able (through no fault of his own) to produce opposing evidence»_space;Ct can grant a continuance (adjournment)
4) Ct THEN “searches the record” (i.e. looks at all the evidence in the record) Ct’s search can lead to “Boomerang Effect” – ct can grant OPPOSING party SJ even w/o a cross-claim
5) Effect of denial: If motion is denied it means that a triable issue of material fact exists Granting of PARTIAL SJ: if the ONLY issue is as to damages, ct. can grant MSJ on liability & then order an immediate trial on the issue of damages
What are the EXCEPTIONS to serving the Motion for SJ after the Answer?
MSJ is permitted BEFORE answer when…
1) Ct (sua sponte) converts MTD for Failure to State a C/A into MSJ (this allows\decision on basis of evidence instead of just on pleadings) 2 reqs: (i) at LEAST 1 party submitted factual affidavits; AND (ii) thect. gives notice to parties so they can submit add’l evidence
2) MSJ in Lieu of Complaint: π may (at her option) move for SJ at the same time as she serves process in TWO situations: (i) action on an instrument for the payment of money (instrument must contain uncond’l promise to pay $$) OR (ii) action on an out-of-state jdmt (i.e. suing to enforce an out-of-state jdmt)
PROCEDURE:
πfiles process w the court and serves on ∆, with the summons, a notice of motion for summary judgment with supporting documentation and affidavits
In the motion, a RETURN DATE must be specified
The minimum advance notice (i.e. service is complete) to ∆ is… AT LEAST 20 DAYSbefore return date, if ∆ was served by PERSONAL DELIVERY AT LEAST 30 DAYSbefore return date, if ∆ was served by ANY OTHER METHOD
RATIONALE: both of these actions are based on docs that are PRIMA FACIE valid when supported by an affidavit of noncompliance
