motion procedure Flashcards
motion
Application for order of court; request for some type of preliminary or incidental relief.
advance notice motions
two types: motions on notice and order to show cause
a) Motions on Notice: Most common way to make a notice, giving opportunity to oppose; must serve notice of motion (nature of motion and return date), and affidavits of facts (showing why motion should be granted), and you may make memorandum of law (legal arguments),
1) Motion Date: motion is made when movant serves the other party; if by mail, when put into mailbox.
2) Return Date: When motion papers presented to court, set by moving party (the “return date”)
3) Hearing Date: When moving party serves papers on opponent—at least 8 days before return date
4) Timing: Hearing Date must be at least 8 days before Return Date
b) Order to Show Cause (alternative way to make motion on notice)—judge gives party notice of motion.
1) Used When: (1) statute requires; (2) party seeks to accelerate Return Date (judge can make it <8 days); (3) party seeks immediate stay of proceedings or TRO (judge can put it into an order to show cause).
2) Procedure: Moving party drafts order; submit to judge with affidavits; Judge sets return date and specifies method of service (usually personal delivery); Judge gives it to Moving Party; Moving Party serves on Opponent; Opponent submits opposition papers on return date.
c) Deciding Order on Motion on Notice or Order to Show Cause
1) After Return Date of a motion on notice: court decision must go into an ORDER, must be entered with Court Clerk, and prevailing party serves copy on loser.
2) Service of Order: necessary (1) for order to take effect AND (2) starts running of 30-day time limit to appeal the order (interlocutory appeal to Appellate Division).
d) Appeal of Orders from Motions on Notice:
- in NY courts, a party can appeal from most interlocutory orders (an order that awards some relief to a party, but does not finally determine all matters in controversy in the action)
1) Optional Interlocutory Appeal: NY is unique in allowing immediate appeals of interlocutory order, if you file and serve notice of appeal within 30 days from service of order or judgment, w/ notice of entry.
2) Failure to Take a 30-Day Appeal: does not waive appeal, just delays it until after final judgment.
ex parte motion
movant goes straight to court and requests order; no advance notice given to adversary—big deal, so requires express statutory authority (rare).
a) Types of Motions: expedient service or process; request for extension of time to serve process; some provisional remedies
b) Remedy for opponent who is aggrieved by ex parte order: no direct appeal from ex parte order
1) Aggrieved party must make motion on notice to vacate ex parte order
2) Then, if motion to vacate denied → aggrieved party can appeal from denial of motion to vacate.
motion for SJ-procedure
Enables party to show, before trial, that no genuine issue of material fact requiring trial, based on all undisputed facts presented in pleadings (supported by affidavit), entitled to judgment as a matter of law.
1. PROCEDURE: any party can move for SJ with respect to any claim or defense asserted in pleadings
- TIMING: must occur
a) AFTER: Service of Answer (but no later than 120 days from filing of note of issue), EXCEPT (in following situations, pre-answer motion for SJ allowed):
1) Conversion of Motion to Dismiss for Failure to State a Cause of Action: Court can (discretion) convert D’s pre-answer motion to dismiss for failure to state a cause of action into a pre-answer SJ motion, thereby deciding the case on basis of evidence (facts) rather than on face of pleadings, IF
(a) at least one of the parties submit factual affidavits in connection with motion to dismiss; AND
(b) Court must gives notice to parties of conversion and opportunity to submit evidence.
2) Motion for SJ in Lieu of Complaint: P can (optional) move for SJ at same time serves process by placing motion in summons IF:
(a) Action on instrument containing unconditional promise for payment of money only, OR
(i) Example: promissory note—very few documents qualify (not for ordinary breach of contract).
(b) Action on out-of-state judgment—convert to NY judgment, enforce here.
(i) Example: guy refuses to pay Florida judgment, sue him in NY, because he has assets in NY
(c) Rationale: based on documents that are prima facie valid.
3) Procedure: after filing process, P must serve D with summons + SJ motion (plus supporting documents and affidavits)
(a) Minimum Advance Notice for Return Date: it’s an action → response time for service (20 days for personal delivery; 30 for others)
b) AND BEFORE: No later than 120 days after Note of Issue, EXCEPT: good cause
1) Good Cause: must be a procedural excuse (e.g., unexpected breakdown in settlement talks; new evidence); but MERITS of motion for SJ is NOT good cause.
2) Note of Issue: when trial calendared.
motion for SJ-evidence and denial
moving party has burden of showing there are no material issues of fact requiring a trial
a) Movant must submit EVIDENCE in form of affidavits, documents, or discovery materials—pleadings are NOT evidence—from persons w/actual knowledge of facts and show no issues of material fact
b) Opponent can submit same types of EVIDENCE to rebut and show there are issues requiring a trial. Opponent cannot simply rely on pleadings to show there is an issue of fact.
c) Mercy Rule: If opponent establishes, via affidavits, that through no fault of own he’s unable to produce opposing evidence → court can deny motion or grant continuance (adjournment) to permit additional evidence to be obtained.
- EFFECT of motion for SJ: motion “searches the record”—court reviews ALL evidence in the record
a) Boomerang Effect: court may grant SJ to either side, regardless of which party made the motion. - DENIAL: court sees triable issues of fact; case moves to trial (liability/damages)
a) Damages Trial: If only fact issue concerns “damages amount” → court grants SJ on liability and orders “immediate trial” on damages only.
