Motion Procedure Flashcards
Def of motion?
Seeking order of court, e.g., to dismiss, change venue, amend pleadings.
- Motion on notice def?
- Serve other party w/ 3 papers for motion on notice?
- When is the motion made?
- Giving notice so other side has opportunity to be heard in opposition.
- Serve following 3 papers: (a) Notice of motion (specifying nature of motion and nec return date); (b) affadavits of fact re why motion should be granted; & (c) memo of law in support (optional, but likely)
- Motion is made when motion papers are served on other party.
How far in advance of return date (minimum) must you serve motion papers?
At least 8 days in advance of return date.
Def of “return date” for motion practice?
Return date = hearing date.
All motion papers filed no later than ______?
Return date.
Order to show cause def? It’s a means to give notice of motion.
A preliminary order signed ex parte by a judge directing opponent to show cause w/r/t why motion shouldn’t be granted.
Order to show cause expedited return date from 8 days (on motion on notice) to _____?
Judge can order earlier return date (hearing date). Judge has discretion
In an order to show cause, Judge can ex parte issue immediate relief of two types:
- Immediate stay of proceedings
2. TRO
Judge grants order to show cause and give it to _______, who _________ ___ opponent?
To the moving party, who serves it on opponent
Whichever party wins the motion serves a copy of the order with _____________ on opposing party? This gives effect to the order and starts 30 day time limit to appeal motion on notice.
With NOTICE OF ENTRY. Order has no effect until it is served.
- In NY, parties can/cannot generally appeal interlocutory orders?
- To appeal, you do what?
- Generally immediately appealable. No need to wait for final judgment, like in federal.
- File and serve a notice of appeal within 30 days of service of order you’re appealing.
Do you have to appeal interlocutory appeal?
No, you can punt and appeal the final judgment instead.
- What’s an ex parte motion?
- E.g.?
- Appealable? What does opposing party do?
- A motion w/o notice given to other side, and judge can rule on w/o other side
- Motion for expedient service of process; request for extension of time to serve process.
- Excluded party must make motion to vacate ex parte motion, and that motion to vacate can be appealed if denied.
- Motion for summary judgment standard?
- How to prove?
- How does opponent disprove?
- NO GENUINE ISSUE OF MATERIAL FACT –> gets judgment as matter of law.
- Movant must prove via affadavits and docs or discovery materials.
- Opponent can produce same kind of evidence to demonstrate genuine issue of material fact MUST GO ABOVE AND BEYOND THE PLEADINGS.
- At the earliest, when can you move for summary judgment and what for?
- At the latest, when can you move for summary judgment? (EXCEPT?)
- After service of answer, P or D can move for summary judgment w/r/t any claim or defense asserted in the pleadings.
- No later than 120 days from note of issue putting case onto trial calendar. (EXCEPT IF MOVING PARTY SHOWS GOOD CAUSE BUT NOT THE MERITS - e.g., procedural excuse with clerk of court or discovery delay).
A motion for summary judgment “searches the record” means?
Court reviews all record docs. Court can grant summ judgment for non-moving party (boomerang).
If ct denies motion for summary jugment, then there is a __________________
triable issue of material fact
If only genuine issue of material fact is damages, what should judge do?
Judge can grant summ judgment on liability and have trial on damages.
Generally summ judgment not available prior to service of the answer, but there are two exceptions for pre-answer motion for summary judgment. Each of two exceptions have PRIMA FACIE VALIDITY, so we expedite process?
- Conversion of D’s pre-answer motion for failure to create a CoA –> CT CAN CONVERT THIS TO A MOTION FOR S.J. (which requires (a) at least one party filed factual affadavits, and (b) ct gives notice of conversion to the parties)
- Motion for summary judgment in lieu of a complaint, which is allowable (a) for an action for an instrument to pay money only = D’s unconditional promise to pay, e.g., promissory note; and (b) an action on an out of state judgment.
Procedure for summary judgment in lieu of a complaint - what’s minimum return date?
- Minimum return date is minimum to answer a complaint under delivered by type of delivery of SJ in lieu of a complaint
