NY Practice - MOTION PROCEDURE Flashcards
Motion
A MOTION is an application for an order of the court (a requires for some type of preliminary or incidental relief in a pending action (e.g. motion to dismiss, change of venue, amend pleadings
MOTION ON NOTICE
A MOTION ON NOTICE gives the adversary an opportunity to be heard in opposition
What papers are served on the other party?
(1) NOTICE OF MOTION - advises opponent of nature of motion and specifies the RETURN DATE
(2) 1 or more AFFIDAVITS of fats as to why motion should be granted
(3) MEMO OF LAW
The motion is "made" when the motion papers are served on the other side -- most common way to serve motion papers is 1st class mail, so made when put motion papers IN MAILBOX
What is the RETURN DATE?
The RETURN DATE is the date on which the motion papers are presented to the court (aka the “hearing date” of the motion)
How much advance motion must be given to the opponent of a motion?
The moving party must serve the motion papers on the opponent AT LEAST 8 DAYS BEFORE the RETURN DATE
e.g. serve July 1st, earliest date you could specify would be July 9
All motion papers, those of moving party as well as those of opposing party, must be filed with the court no later than the RETURN DATE
The court begins the decision-making process on the RETURN DATE and then issues an order either granting or denying the motion
ORDER TO SHOW CAUSE
Order to Show Cause - is an alternative way to make a motion on Notice. The order to show cause is a preliminary order, signed EX PARTE by the judge, directing the adversary party to SHOW CAUSE on a date specified by the judge, why the motion should not be granted.
The JUDGE rather than the party, is giving the notice of motion
PROCEDURE:
(i) The Moving party drafts the “Order to Show Cause” and submits it directly to the judge, ex parte, along with the supporting affidavits for the underlying motion.
(ii) The JUDGE will set the RETURN DATE in the order and will specify the method of service on the adversary (usually personal delivery).
(iii) After the order to show cause is signed, the order and the underlying motion papers are then served on the opponent
(iv) opponent may then submit opposition papers on the RETURN DATE
e.g. states “let the D show cause on May 5, 2012 why an order should not be granted requiring D to produce documents x, y, and z.
Why would a party make a motion by “Order to Show Cause” instead of by notice of motion?
3 possible reason for moving by “Order to Show Cause” instead of by “Notice of Motion”
(1) It is a means of ACCELERATING THE RETURN DATE, where exigent circumstances make the usual 8-day advance notice too long to wait for judicial assistance. In signing the order to show cause, the JUDGE can specify a RETURN DATE that is SOONER than the 8-day minimum that would otherwise apply.
(2) Judge can grant immediate STAY of the proceedings or a Temporary Restraining Order (TRO)
(3) The STATUTE which governs the particular motion may require it`
The Deciding Order
The Deciding Order - After the return date of a motion on notice, the court’s decision must be embodied in a written ORDER signed by the court and entered with the clerk. The prevailing party (whether it be the moving party or the opponent) serves a copy of the order on the losing party with NOTICE OF ENTRY of the order.
Even if the court provides the party with the order, the prevailing party MUST SERVE the order as described above
What are the 2 effects of service of copy of the order?
(1) Service of the order is NECESSARY to give effect to the order
(2) Service of the order starts the running of a 30-day time limit to APPEAL from the order (if it was a motion on notice)
Appeals of Orders from Motions on Notice
In NY state courts, a party can APPEAL from most interlocutory orders. An interlocutory order is an order that awards some relief to a party, but does not finally determine all matters in controversy in the action (e.g. order upholding jurisdiction, amending the complaint, or changing venue). An action is concluded with a FINAL JUDGMENT.
To appeal from an interlocutory order or judgment, a party must FILE and SERVE a NOTICE OF APPEAL within 30 days from service of the order or judgment, with notice of entry
Note: the losing party is not REQUIRED to take interlocutory appeal, he can wait until there is a final judgment and then appeal everything within 30 days of FINAL JUDGMENT, But if he lets the 30-day period go by on the interlocutory appeal, he MUST wait to appeal until the final judgment
Ex Parte Motions
EX PARTE MOTION is a motion in which no advance notice is given to the adversary, i.e. without giving an opportunity to be heard in opposition. Moving party goes straight to the court with the motion papers and requests an order granting the relief sought
Circumstances in which motion can be made “ex parte”
RARE- an ex parte motion is not permitted UNLESS you have EXPRESS STATUTORY AUTHORIZATION (presumption is need motion on notice)
Note: assume a motion must be made on notice, unless a statute provides otherwise
e. g. of Ex parte motions discussed previously - ex parte motion for extention on time to serve process
- expedient/court improvised service of process
Remedy for Opponent who is aggrieved by the ex parte order
Can’t appeal - the aggrieved party makes a motion on notice to VACATE the ex parte order. THEN if “motion to vacate” is denied the aggrieved part can APPEAL from the denial of the motion to vacate
this 2-step process is so that appellate ct has full record - bc ex parte motion was one-sided - this 2nd step allows appeals ct to have arguments on both sides
Motion for SUMMARY JUDGMENT
Motion for SUMMARY JUDGMENT
Purpose of this motion is to enable a party to show, before trial, that even though the pleadings may be sufficient on their face there i NO GENIUNE ISSUE OF MATERIAL FACT requiring a trial.
The moving party is contending that reasonable persons cannot differ, and that she is therefore entitled to judgment AS A MATTER OF LAW
(BAR TIP: remember to discuss the underlying elements of COA)
TIMING: When can you serve a motion for SUMMARY JUDGMENT?
After service of the answer, any party, P or D,, can move for SUMMARY JUDGMENT with respect to any claim or defense asserted in the pleadings
OUTSIDE TIME LIMIT for making summary judgment motion – NO LATER THAN 120 days from the filing of a NOTE OF ISSUE
Note of Issue = a piece of paper that puts case on court’s trial calendar
EXCEPTION:
GOOD CAUSE - motion may be permitted after expiration of 120 days from filing of note of issue if moving party shows GOOD CAUSE (procedural excuse), such as law office failure or delayed service of discovery documents until after the filing of note of issue MAY constitute “good cause”;
note: strength of the motion on the merits DOES NOT qualify as “good cause”
EVIDENCE in Motions for Summary Judgment
Moving party has the burden of showing that there are no material issues of fact requiring a trial, and that she is entitled to judgment as a MATTER OF LAW
Burden is satisfied by MOVING PARTY, by submitting evidence in the form of
(1) AFFIDAVITS or
(2) RELEVANT DOCUMENTS, or
(3) DISCOVERY MATERIALS (e.g. deposition transcripts, or answers to interrogatories)
Affidavits must be submitted by persons with ACTUAL KNOWLEDGE of the facts such as parties themselves, or bystanders, witnesses, or experts
How does an OPPONENT DEFEAT a motion for Summary Judgment?
- -by producing and presenting contrary evidence showing that a TRIABLE ISSUE OF FACT does exist - using same kind of evidence as moving party
- OPPONENT CANNOT SIMPLY RELY ON THE PLEADINGS to show that there is an issue of fact, bc PLEADINGS ARE NOT EVIDENCE
IF the opponent establishes with an affidavit that he is not yet able, through no fault of his own, to produce opposing evidence, the court can either deny summary judgment or grant a continuance (adjournment) to permit additional evidence to be obtained
Searching the Record
A motion for summary judgment “searches the record” meaning that the court reviews all of the evidence in the record, regardless of which side submitted it. If the court concludes that the opponent, rather than the moving party, is entitled to summary judgment on an issue addressed by the parties, the court may grant summary judgment to the opponent even if the opponent did not make a cross-motion for such relief
“BOOMERANG EFFECT” - D moves for summary judgment attempting to show the absence of negligence by D. P’s evidence in opposition, which seeks to merely show an issue of fact as to D’s negligence, is determined by the court to be so strong that it justifies summary judgment for P.
