Part XIII Motion Practice OverVIew Motion Practice OverVIew

• Jurisdiction: New York

Part XIII —
Motion Practice Overview

The Legal Writer continues its series on civil litigation.

In the last issue, the Legal Writer discussed responding to interrogatories. In this issue, the Legal Writer offers an overview of motions and their essential components. In the following issues, the Legal Writer will emphasize motions to dismiss under CPLR 3211 and summary-judgment motions under CPLR 3212, two weapons in a litigator’s arsenal. The Legal Writer will also discuss cross-motions and replies.

To draft effective motion papers, litigators must be familiar with the Uniform Rules for New York trial courts and the parameters of motion practice found in CPLR 2211 through 2222. Because of New York’s Individual Assignment System (IAS), in which a case assigned to a judge might remain with that judge up to and including the trial,⁴³² litigators must also know what each judge requires in a motion, including motions in the commercial parts. Judges in one county will have rules and preferences different from judges in the same or different counties. The lack of uniformity among judges causes confusion.

General Information About Motions

A motion is a request for an order from a court.⁴³³ Some motions are made in writing; others, orally. Motions are powerful litigation tools. A successful motion might help you resolve key substantive issues or even dispose of an entire case. A motion might also help you learn critical information for your client. The common practice is for a party to initiate and move the court for some type of relief, although the court might grant an order it has made on its own motion, or sua sponte. Most motions are on notice to the opposing side. Those motions not on notice to the opposing side are called ex parte motions. Courts generally disfavor ex parte motions. Ex parte motions are permissible only when a statute or rule explicitly authorizes them.⁴³⁴

Preliminary Motions

Moving for preliminary relief “protect[s] the movant by maintaining the status quo while the [court determines the] legal and factual issues of the case.”⁴³⁵ Preliminary injunctive relief is an extraordinary remedy a court grants in its discretion. CPLR 6301 and 6313 explain preliminary injunctions and temporary restraining orders.

Request a stay of the proceedings or a temporary restraining order if a risk of imminent harm exists before the court hears the motion on its merits. If you’re seeking a temporary restraining order, a court may require you to give notice to the opposing side and give an undertaking.

To obtain a temporary restraining order without notice, you must show that “immediate and irreparable injury, loss or damages will result unless the defendant is restrained before a hearing can be held.”⁴³⁶ Once a court grants a temporary restraining order, the court sets, or schedules, the hearing for the preliminary injunction.⁴³⁷ If sought ex parte, a temporary restraining order might be easier to obtain than a preliminary injunction.

Emergency Motions

A moving party may bring a motion by order to show cause in an emergency. Bringing a motion by order to show cause is an expedited way to move the court for relief when little or no time exists to move on notice. Bringing a motion by order to show cause allows shorter notice than the minimum eight days’ notice provided under CPLR 2214(b) for bringing a motion on notice. An order to show cause is obtained ex parte, although a court in its discretion may allow the other side to see it and oppose it before the court signs or declines to sign it. Like a motion on notice, an order to show cause must provide the return date (the date the court will hear the order to show), the time, the place, and the relief you seek. The court sets the day and time when it will hear your order to show cause; leave the day and time blank.

Ex Parte Motions

Ex parte motions are made to a judge without notice to your adversary. The CPLR authorizes ex parte motions in limited situations: attachment (CPLR 6211); temporary restraining orders (CPLR 6313); and orders specifying the manner of effecting service of process (CPLR 308(5)). CPLR 2217(b) requires you to accompany an ex parte motion with an affidavit or affirmation stating whether you’ve moved before for similar relief and the result of that motion. Specify the new facts, if any, on which you base the new motion, if you’ve asked for similar relief before. When moving ex parte, a court might require you as the moving party to post an undertaking.⁴³⁸ Under the IAS system, submit your ex parte motion to the assigned judge.

Stay of Proceedings

Under CPLR 2201, you may move a court in which an action or proceeding is pending to grant a stay of the case. A stay suspends the case. Make your application for a stay in the court in which the matter is pending. You may move for a stay by notice of motion or by order to show cause. Seeking a stay isn’t the same as seeking injunctive relief.⁴³⁹ When a court grants an injunction, it directs a party to do or not do something. The rules about injunctive relief are set forth in CPLR article 63. A court may grant injunctive relief only if it has the jurisdiction to grant an injunction.

Motions to Correct Pleadings

Before filing a responsive pleading, you may move under CPLR 3024(a), 3024(b), or 3014 to correct pleadings. Under CPLR 3024(b), you may move for a more definite statement if you can’t respond to a pleading because the pleading is vague. Under 3024(b), you may move to strike any scandalous or prejudicial material in a pleading. If you can’t respond to a pleading because your adversary hasn’t...