Motions

Question 1

Motion Mechanics

Answer 1

• IF you are in a court other than Supreme Ct – check for additional rules

Question 2

Notice of Motion: What do you serve?

Answer 2

• Notice of Motion
• Atty Affrimation
• Supporting documents
• Memo of Law
• Affirmation of service
• RJI for first time court date

[Handout 6]

[Handout 6]

Question 3

How do you serve papers?

Answer 3

CPLR 2103(b) [also for time to add to the return date - efile, mail, fax, overnight] [Handout #1] (b) Upon an attorney. Except where otherwise prescribed by law or order of court, papers to be served upon a party in a pending action shall be served upon the party’s attorney. Where the same attorney appears for two or more parties, only one copy need be served upon the attorney. Such service upon an attorney shall be made:

1. by delivering the paper to the attorney personally; or
2. by mailing the paper to the attorney at the address designated by that attorney for that purpose or, if none is designated, at the attorney’s last known address; service by mail shall be complete upon mailing; 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 if the mailing is made within the state and six days if the mailing is made from outside the state but within the geographic boundaries of the United States; or
3. if the attorney’s office is open, by leaving the paper with a person in charge, or if no person is in charge, by leaving it in a conspicuous place; or if the attorney’s office is not open, by depositing the paper, enclosed in a sealed wrapper directed to the attorney, in the attorney’s office letter drop or box; or
4. by leaving it at the attorney’s residence within the state with a person of suitable age and discretion. Service upon an attorney shall not be made at the attorney’s residence unless service at the attorney’s office cannot be made; or
5. by transmitting the paper to the attorney by facsimile transmission, provided that a facsimile telephone number is designated by the attorney for that purpose. Service by facsimile transmission shall be complete upon the receipt by the sender of a signal from the equipment of the attorney served indicating that the transmission was received, and the mailing of a copy of the paper to that attorney. The designation of a facsimile telephone number in the address block subscribed on a paper served or filed in the course of an action or proceeding shall constitute consent to service by facsimile transmission in accordance with this subdivision. An attorney may change or rescind a facsimile telephone number by serving a notice on the other parties; or
6. by dispatching the paper to the attorney by overnight delivery service at the address designated by the attorney for that purpose or, if none is designated, at the attorney’s last known address. Service by overnight delivery service shall be complete upon deposit of the paper enclosed in a properly addressed wrapper into the custody of the overnight delivery service for overnight delivery, prior to the latest time designated by the overnight delivery service for overnight delivery. Where a period of time prescribed by law is measured from the service of a paper and service is by overnight delivery, one business day shall be added to the prescribed period. “Overnight delivery service” means any delivery service which regularly accepts items for overnight delivery to any address in the state; or
7. by transmitting the paper to the attorney by electronic means where and in the manner authorized by the chief administrator of the courts by rule and, unless such rule shall otherwise provide, such transmission shall be upon the party’s written consent. The subject matter heading for each paper sent by electronic means must indicate that the matter being transmitted electronically is related to a court proceeding.

Question 4

When do you make the motion returnable?

Answer 4

CPLR 2214(b)
- 8days +service method
- OR
- 16 days PLUS service method if you add the following:
—“PLEASE TAKE FURTHER NOTICE, that answering affidavits, if any, are to be served upon the unsigned within seven (7) days prior to the return date of the within application.”

Question 5

When are Opposition papers due? CPLR 2214(b)

Answer 5

• Serve 2 days before the return date
• UNLESS the special demand is made –> then serve 7 days before return date.

Question 6

Reply Papers: When due?

CPLR 2214(b)

CPLR 2214(b)

Answer 6

Serve 1 day before the return date

Question 7

The Cross Motion

CPLR 2215

CPLR 2215

Answer 7

• Who can cross move?
• Its relief demanded by other than moving party [but…]
• When is the Cross Motion returnable?
  – Same day as the motion - that’s what makes it a cross motion rather than a motion

Question 8

When must the Cross Motion be served? - CPLR 2215

Answer 8

• Cross motion must be made 3 days PLUS 3 days if mailed
• OR
• 1 day if overnight
• UNLESS the demand for 7 days was made 16 days prior to the return date THEN 7 days plus 3 days if mailed OR 1 day if overnight mail.

Question 9

What can you ask for in the Cross Motion?

Answer 9

“relief need not be responsive to that demanded by the moving party”

Question 10

The Notice of Motion v. the Order to Show Cause [Handout #3]

Answer 10

• Who picks the return date?
• Who picks the methos of service?
• When is a TRO available?

Question 11

The Results

Answer 11

[GPT]- Decision: Written explanation issued by judge that outlines the reasoning and legal basis for their ruling. Decision often leads to an Order.
- Order: Formal, written direction issued by a court that requires or prohibits certain action. It is enforceable by law and can be issued after a judge makes a decision.
- Final Order: A final order resolves the main issue[s] in a case and typically ends the litigation in that court. After a final order, the case is considered closed UNLESS one of the parties files an appeal.
- Non-Final Order: Non-final [or interlocutory] order addresses intermediate issues but does not fully resolve the case. These orders often deal with procedural matters or preliminary decision.
- Order Denied with Prejudice: the court has permanently denied the request, and the part
- What is an Order Denied without Prejudice?
- What other meaning does Prejudice have in NYP?
- What is a sua sponte order?

Question 12

How to Turn a Decision into An Order

Answer 12

• Settle Order on Notice Uniform Rule 202.48
• Must be made** within 60 days**. CPLR 2219
• Must **serve not less than 5 days **before the date of settlement if hand delivered OR 10 days before the date of settlement if served by mail.
• Cross Notice of Settlement [service 2 days/7days]
• Motion to Resettle the Order

Question 13

Signature. – NY Court Rule §130-1.1-a NYCRR Title 22 Judiciary, subchapter C Rules of Chief Aministrator of the Courts Signing of Papers

Answer 13

• Every pleading, written motion, and other paper, served on another party or filed or submitted to the court shall be signed by an attorney,
• Absent good cause shown, the court shall strike any unsigned paper if the omission of the signature is not corrected promptly after being called to the attention of the attorney or party.

Question 14

Certification. – NY Court Rule §130-1.1-a NYCRR Title 22 Judiciary, subchapter C Rules of Chief Aministrator of the Courts Signing of Papers

Answer 14

• By signing a paper, an attorney or party certifies that, to the best of that person’s knowledge, information and belief, formed after an inquiry reasonable under the circumstances,
• (1) presentation of the paper or the contentions therein are not frivolous as defined in §130-1.1(c)
• (2) where the paper is an initiating pleading, (i) the matter was not obtained through illegal conduct, or that if it was, the attorney or other persons responsible for the illegal conduct are not participating in the matter or sharinf in any fee earned there from, and (ii) the matter was not obtained in violation of 22 NYCRR 1200.41-a DR7-111.

Question 15

Conduct is frivolous IF: §130-1.1(c)

Answer 15

1. It is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;
2. It is undertake primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; OR
3. it asserts material factual statements that are false,
   - Frivolous conduct sheall include the making of a frivolous motion for costs or sanctions under this section.

Question 16

Costs / Sanctions [Frivolous Conduct] - NY Court Rules §130-1.1.

Answer 16

• The court may award costs in the form of **reimbursement **for actual expenses reasonable incurred and reasonable attorney’s fees, resulting from frivolous conduct.
• In addition to or in lieu of awarding cost, the court may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct
• An award of costs or the imposition of sanctions may be made either upon motion or upon the court’s own initiative, after a reasonable opportunity to be heard.
• The **form of the hearing shall depend **upon the nature of the conduct and the circumstances of the case

Question 17

How to Enforce the Order CPLR 2220 [Handout 5]

Answer 17

• Serve it with Notice of Entry
• Effect of Service:
  – Order must be obeyed
  –Starts the clock for any Notice of Appeal

Question 18

2 Important Dispositive Motions

Answer 18

**The Motion to Dismiss **CPLR 3211
- BEFORE serving answer or reply to counter-claim.
- Only grounds listed in 3211(a)
- Extends the time to answer until 10 days after resolution of the motion 3211(f)

The Motion for Summary Judgment CPLR 3213
- AFTER issue is joined [answer is served]
- No pre-set grounds
- Equivalent of jugment on the Merits for issue decided by the motion
- Post Answer - use 3212 for 3211 grounds

Question 19

Motion to Dismiss - CPLR 3211

Answer 19

Good for Complaints, Counter Claims and Defenses
**Grounds CPLR 3211[a]: **
- Defense founded on documentary evidence [What kind of document?]
- No subject matter jx
- Plaintiff lacks capacity to sue See CPLR 205
- Another action pending
- Action may not be maintained because of a list of legal basis that preclude the action, i.e. Res judicata, bankruptcy discharge, statute of frauds, statute of limitations [many of these may prove to be issues of fact]
- Improper counterclaim
- Failure to State a Cause of Action
- - Elements not met OR
– Cause of Action not recognized in NYS
- Lack of Personal Jx
- - Timining critical - motion must be made within 60 days of servinf the pleading objecting to service or the defense is waived CPLR 3211(e)
- Missing necessary party [failure to join necessary party]
- Non-profit immunity

Question 20

Motion for Summary Judgment

Answer 20

• No issue of fact exists as a matter of law
• The Ct may “search the record” and may grant judgment to a non-moving party
• Deadline to make the motion: within 120 days of Note of Issue UNLESS the court orders a shorter deadline. CPLR 3212(a), can be shortened to 30 days after filing of Note of Issue IF the court wants to do that

Question 21

Is the motion 3211 or 3212?

Answer 21

Prior to Answer - Motion to Dismiss under 3211
- Though court can convert to a 3212 motion and allow for more fact based evidence to be submitted
- Only based on the specific grounds listed in CPLR 3211

After Answer - Motion for Summary Judgment 3212

Question 22

Pioneer v. Chiarmonte, 77 Misc 3d 360 [2022]

Answer 22

• … defendant’s fact-based…defense…should, at this juncture [post Answer], [be brought as] motion for summary judgment under CPLR 3212
• … Ct of Appeals left open the possibility that a defendant may obtain dismissal under CPLR 3211(a)(7) thorugh the submission of “conclusive” affidavits and evidence
• … But this court is obliged to follow the 3rd Department’s recent precedent which teaches that “a court resolving a motion to dismiss for failure to state a claim cannot base the determination upon submissions by the defendant,” no matter “how compelling claims made in such submissions may appeal.”

Question 23

Converting 3211 to 3212

Answer 23

• CPLR 3211 (c) permits conversion of motion to dismiss to a motion for summary judgment:
  – Upon proper notice
  – Where the parties are treating the motion to dismiss as a motion for summary judgment.

Question 24

Discovery Motion Practice - Protecting your Client from Unreasonable Demands

Answer 24

Move for Protective Order CPLR 3103.
- On motion OR on its own initiative [aka sua sponte]
- To prevent abuse, unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice.

Disclosure of item is suspended during the pendency of the application for protective order. CPLR 3103(b)

Question 25

Discovery Motion Practice - Getting What You Demand

Answer 25

Move to Compel CPLR 3124: The issue of** whether compliance is required **will be determined by a motion to compel pursuant to CPLR 3124
- Be careful to obtain the relief you need.

Move for Sanction CPLR 3126:
- Violations of a court order, or the item “ought to have been disclosed”
- Fact Determination, Preclusion, or Striking Pleadings
- Be careful what you ask for - consider burden of prood

Move for Supervison of Disclosure CPLR 3104
- to deal with shenanigans

Question 26

CPLR 2222, Motions Affecting Prior Orders

Answer 26

Motion to Reargue: CPLR 2221(d)
- The court misapprehended or overlooked matters of **fact or law **
- Deadline: Motion to reargue shall be made within 30 days after service of a copy of the order determining the prior motion and notice of entry

Motion to Renew: CPLR 2221(c)
- New facts not provided on the prior motion would change the prior decision; OR
- There has been a** change in the law** that would affect the prior decision
- There is **reasonable justification for not presenting the facts on the original motion **
- No deadline
- BEWARE: The Court understand and the difference between reargument and renewal motions.

Question 27

Motion to Change Venue CPLR § 510

Answer 27

1. The county designated is not proper
2. Impartial trial cannot be had in the proper county
3. The **convenience of material witnesses **and the ends of justice will be promoted by a change of venue.

Question 28

How to Change Venue if Improper Choice in the beginning

Answer 28

1. Defendant makes demand to change venue to Defensant’s choice of proper venues
   - Serve Defendant’s demand for proper venue WITH or BEFORE Defendant serves its Answer
2. Then Plaintiff has 5 days to serve affadavit showing answer is proper.
   - If plaintiff serves the affidavit, then defendant has 15 days from service of its original demand for proper venue to move, IN THE CURRENT VENUE, to change venue
   - If plaintiff did NOT serve affidavit showing venue was proper, defendant can bring the motion IN PROPOSED NEW VENUE

Question 29

When do you make the motion to change venue? CPLR §511

Answer 29

• If the grounds for the motion is that the county is not proper, the demand to change venue must be made WITH or PRIOR to service of the answer. Motion must be made within 15 days of the demand for proper venue.
• If any other basis for the motion - then the motion shall be made “within a reasonable time after commencement of the action.”
• Laches can result in denial of the motion

Question 30

Pioneer v. Chiarmonte, 77 Misc 3d 360 [2022]

Answer 30

• … Defendants’ fact-based… defense… should, at this junctute [post Answer], [brought as] motion for summary judgment under CPLR 3212
• … Ct of Appeals left open the possibility that a defendant may obtain dismissal under CPLR 3211(a)(7) through the submission of “conclusive” affidavits and evidence
• … But this ct is obliged to follow the 3rd Department’s recent precedent which teached that “a court resolving a motion to dismiss for failure to state a claim cannot base the determination upon submissions by the defendant,” no matter “how compelling claims made in such submissions may appear.”

Question 31

Laches

Answer 31

• Sitting on your rights
• You snooze, you loose. Or, as they say in the law:
• “Laches is an equitable bar, based on a lengthy neglect or omission to assert a right and the resulting prejudice to an adverse party. The mere lapse of time, without a showing of prejudice, is insufficient to sustain a claim of laches. Prejudice may be demonstrated by a showing of injury, change of position, loss of evidence, or some other disadvantage resulting from the delay.”