Motion Practice

• Author: Michael H. Barr/Burton N. Lipshie/Sharon Stern Gerstman
• Pages: 653-692

Chapter 16

moTion PraCTiCe

QUICK VIEW

Definition: A motion is an application to a court for an order granting some form of relief such as requiring a

party or nonparty to act or forbear from acting in a certain way. A noticed motion is made when the notice of

motion or order to show cause is served on the opposing party.

Scope of Chapter: Rules and techniques common to all motions. Formalities of notice. Requirements for writ-

ten motions, oppositions, briefs and supporting materials. Procedures and tactics for the hearing on a motion.

Special types of motions: ex parte motions; emergency motions; disclosure motions.

Strategies and Tactics: Prepare motions and supporting materials carefully so that a busy judge quickly under-

stands why relief should be granted or denied. However, recognize that many motions, and particularly disposi-

tive motions, are decided on the papers, with benefit of only brief, if any, oral argument. Include all arguments,

exhibits, and key authorities in the motion papers. Observe the formalities of motion practice to avoid delay and

extraneous arguments about procedure. When making a motion, consider whether you would want to take an

interlocutory appeal from an adverse decision. If not, see if you can work out the dispute with your adversary

without making a motion. Keep in mind that New York permits interlocutory appeals and that appellate courts

have strict requirements as to what constitutes an appealable paper. Therefore, even if a judge encourages infor-

mal motion practice, the practitioner should be careful to make a record sufficient to satisfy the requirements of

an appellate court.

Statutes and Rules: CPLR 2103, 2106, and Article 22; Uniform Rules for Supreme and County Court 22 NYCRR

§§202.5 - 202.8, 202.48; and local court rules by individual county or by individual judge.

Related Topics: Pleadings, Ch 15; Preliminary Injunctions, Ch 17; Discovery Disputes, Ch 31; Motions to

Dismiss, Ch 36; Summary Judgment, Ch 37.

Forms: See digital access for the following forms:

• Form 16:10, Request for Judicial Intervention.

• Form 16:20, Caption (Notice of Motion).

• Form 16:30, Notice of Motion.

• Form 16:40, Caption (Order to Show Cause).

• Form 16:50, Order to Show Cause.

• Form 16:60, Attorney Affirmation.

• Form 16:70, Affidavit of Service.

• Form 16:80, Notice Declining Service by Fax or Electronic Transmittals.

New York Civil PraCtiCe Before trial 16-2

TABLE OF CONTENTS

I. Overview

§16:01 Purpose of Pretrial Motion Practice

§16:02 Motion Defined

§16:03 Formal vs. Informal Motions

§16:04 Use Informal Motions to Your Advantage

§16:05 Sources of Law

§16:06 Pleadings Distinguished

§16:07 Strategic Considerations; Should this Motion Be Filed?

II. Where to File the Motion

§16:20 Motion Venue in Supreme Court Actions

§16:21 Motion Venue in County Court Actions

§16:22 Obtaining an Assigned Judge; the Individual Assignment System

§16:23 Effect of the IAS on Motion Venue Provisions

§16:24 Effect of Filing a Motion in the Wrong County

§16:25 Proper Venue for Ex Parte Motions

§16:26 Filing Fees

III. Preparing, Serving, and Filing the Motion

A. Formal Requirements

§16:30 Pitfalls to Avoid

§16:31 Pretrial Motion Must Be in Writing

§16:32 Format: Notice of Motion or Order to Show Cause

§16:33 Requirements for Form and Content

§16:34 Must Be Signed by Attorney

§16:35 Length of Motions

§16:36 Paper Size and Spacing

§16:37 Appendix

§16:38 Electronic Filing

B. Essential Elements of Motion: Notice, Factual Basis, Law

1. NOTICE REQUIREMENTS

§16:50 Notice of Motion: Contents

§16:51 Minimum Time for Notice

§16:52 Selecting the Hearing Date

§16:53 Specify Whether Oral Argument Is Requested

2. AFFIDAVITS AND EXHIBITS

§16:60 Supporting Papers Must Be Attached

§16:61 Format of Supporting Affidavits

§16:61.1 Foreign Language Affidavit

§16.61.2 Affidavits Executed Outside New York

§16:62 Affidavits Authorized in Motion Proceedings

§16:63 Use of Discovery Documents

§16:64 Deposition Testimony

16-3 motioN PraCtiCe

§16:65 Admissibility of Evidence in Affidavits and Documents

3. BRIEF IN SUPPORT OF MOTION

a. General Considerations

§16:70 Brief Not Required, but Advisable

§16:71 Court Will Rely on Brief

b. Drafting Considerations

§16:80 Contents

§16:81 Be Concise

§16:82 Omit Boilerplate

§16:83 Summarize Your Argument

§16:84 Relate Facts to Argument

§16:85 Support Facts

§16:86 Citation Principles

§16:87 Minimize Rhetoric

§16:88 Avoid Personal Attacks

§16:89 Don’t Patronize the Court

C. Serving the Motion

§16:99 When Motion Is Made

§16:100 Papers to Be Served

§16:101 When Copies of Pleadings Must Be Attached to Motion

§16:102 Who Must Be Served?

§16:103 When Defendant Has Not Yet Appeared

§16:104 Parties Not Yet Named in Complaint

§16:105 Methods of Service

§16:106 Service on Attorney

§16:107 Time for Service

§16:108 Time for Serving Opposition Papers

§16:109 Court May Overturn Lengthy Return Period

D. Filing the Motion

§16:120 Legal Requirements

§16:121 Filing Procedure

§16:122 Special Procedure for Unassigned Cases

§16:123 Affidavits of Service

§16:124 Unserved Material

§16:125 Clerk Required to Accept Papers for Filing

IV. Opposing the Motion

A. Opposition Papers

§16:130 Tactical Considerations

§16:131 Opposition Papers

§16:132 Opposition Brief

§16:133 Affidavits and Other Documents

§16:134 Serving the Opposition Papers

B. Making Cross-Motions

§16:140 Statutory Requirements

§16:141 May Seek Relief Only Against Moving Party