Part XIV Motion Practice OverVIew Continued Motion Practice OverVIew Continued

• Jurisdiction: New York

Part XIV —
Motion Practice Overview Continued

In the last issue, the Legal Writer discussed the motions that litigators have in their civil-practice arsenal. The Legal Writer briefly discussed the form and content of motions. It also discussed a motion’s component parts: the notice of motion;⁴⁶² the supporting affirmations, affidavits, and exhibits; and the brief, or memorandum of law, in support of the motion. In this issue, the Legal Writer continues with more on motion practice.

Motion Practice Overview

The documents in motion practice are your motion papers, also known as your moving papers. This includes your notice of motion along with supporting affirmations, affidavits, and exhibits and your brief, also called a memorandum of law. Your adversary might want to answer your motion. Your adversary’s papers are known as the opposition, or opposition papers. You might then want to respond to your adversary’s opposition. Your response is called a reply.

You must prepare, serve, and file the notice of motion along with supporting affirmations, affidavits, and exhibits to have a court clerk calendar your motion before a judge. Also serve and file your brief, or memorandum of law, if you write one. A brief is helpful but not required.

Attach as exhibits to your motion copies of the pleadings if your motion puts the pleadings in issue. Attach them even if they’re in the court file. If you’re seeking to add or amend pleadings, moving to intervene, cross-claiming, or adding a party, include copies of the older pleadings and your proposed pleadings.⁴⁶³ If you don’t attach a copy of the pleadings, or the old and proposed pleadings, a court might deny your motion.⁴⁶⁴

Many of the rules discussed below apply to actions and special proceedings in New York, although this column is directed toward actions. Special proceedings sometimes have their own rules and unique procedures. So does Federal Court. Determine what kind of case you have and which court will hear it before consulting the rules below.

Serving Motions

Serve all copies of your motion and any supporting papers on all the parties appearing in the action.⁴⁶⁵ You must also serve all parties in the action irrespective of the number of motions you make, and even if you’re opposing or replying to a motion.⁴⁶⁶

You don’t need to serve a party who has failed to appear.

When you’re moving to join additional parties, you needn’t serve the prospective parties with copies of your motion, but you may do so as a courtesy.⁴⁶⁷

Serve your motion papers the same way you’d serve other papers. The CPLR provides that “papers may be served by any person not a party of the age of eighteen years or over.”⁴⁶⁸ Follow the CPLR 2103 requirements for serving motion papers.

If an attorney represents a party, you must serve the party’s attorney. If the same attorney represents more than one party, serve only one copy of your motion papers on that attorney.⁴⁶⁹

Serve the party’s attorney by any of the methods outlined in CPLR 2103(b)(1)–(7). Under CPLR 2103(b)(1), you may deliver the motion personally on the attorney, inhand. Or, under CPLR 2103(b)(2), you may mail the papers to the attorney at the address the attorney designated; use the address on the attorney’s notice of appearance. If the attorney has not designated an address, mail the motion to the attorney’s last known address. Or, under CPLR 2103(b)(3), you may leave the motion papers at the attorney’s office with a person in charge. If no one’s in charge, you may leave the papers in a conspicuous place. If the office is closed, you may drop the papers in the letter drop or box at the attorney’s office. Or, under CPLR 2103(b)(4), if you can’t serve the papers at the attorney’s office, leave the papers at the attorney’s New York residence with a person of suitable age or discretion. Or, under CPLR 2103(b)(5), you may transmit the papers to the attorney by facsimile. Or, under CPLR 2103(b)(6), you may serve the papers by overnight mail at the address the attorney designated; if no address is designated, serve the attorney’s last known address. Or, under CPLR 2103(b)(7), you may serve the papers electronically (email) if the chief administrator of the court has authorized this method of service and if the party has consented to this method of service. Most practitioners who serve by email do so because the case is part of an electronic filing (e-filing) program through the New York state courts and the court rules allow for service by email.⁴⁷⁰

The CPLR explains that if a party to the action is pro se or you can’t serve the party’s attorney, you must serve the pro se party as outlined in CPLR 2103(b)(1), (2), (4), (5), or (6).⁴⁷¹

If you serve your motion papers or opposition papers by facsimile, use facsimile only when your adversary designates a facsimile number for service of papers. CPLR 2103(b)(5) provides that

[t]he 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.

Serve the motion and supporting papers at least eight days before the return date—the date the motion is scheduled for the judge to hear it in court. If you’re opposing a motion, serve your opposition papers at least two days before the return date.⁴⁷² The moving party might not always receive the opposition papers in time for the return date. If you’re the moving party, give your opposing party enough time to oppose your motion. For example, file your moving papers at least 16 days before the return date. Your adversary will have to serve its opposition papers at least seven days before the return date. If you need to reply to those papers, do so at least one day before the return date. See below for more information on replies.

In the last issue, the Legal Writer discussed bringing motions by order to show cause. You may not bring a notice of motion earlier than the eighth day after you’ve served the motion papers;⁴⁷³ therefore, if you want the motion heard faster, you’ll have to bring your motion by order to show cause. If you move by order to show cause, it’s up to the court to determine the return date, the method of service, and the service date for the order to show cause and any opposition papers.⁴⁷⁴ Practitioners usually leave blanks on their orders to show cause for the court to choose the dates.

When you serve your motion papers by mail, add five days to the return date.⁴⁷⁵ For example, on an eight-day notice of motion, the return date will be 13 days after mailing (eight days’ notice plus five days for mail equals 13). On a 16-day notice of motion, the return date will be 21 days after mailing (16 days plus five days for mailing equals 21 days).⁴⁷⁶ A court might deny your motion even if your adversary doesn’t appear on the return date if you didn’t account for the five days it takes for mailing and for your adversary to respond...