Part XXXVI Motions To Reargue And Renew Motions To Reargue And Renew

• Jurisdiction: New York

Part XXXVI — Motions to Reargue
and Renew

In the last issue, the Legal Writer concluded its discussion of contempt motions. We continue the series on civil-litigation documents with motions to reargue and renew.

CPLR 2221 gives you two options if you want the court to reconsider (or reopen) its decision: (1) moving to reargue and (2) moving to renew.¹⁵⁹¹ Use a motion to reargue or renew, or both, after a court has ruled against you on a motion. In your motion to reargue, renew, or both, you’re asking the court to reconsider its decision. It’s different from an appeal. A motion to reargue, renew, or both asks the same judge who ruled against you to change his or her mind.

A court might issue several decisions in the same case depending on what relief a party seeks. The Legal Writer will use “original decision” to refer to the decision that prompts you to move to reargue or renew. It’s the decision in which the court ruled against you. You’re asking the court to reconsider it.

Before you move to reargue, or renew, or both, you’ll have to make different arguments depending on which motion you bring. You have different time limits for moving to reargue and moving to renew. And different rules exist if you’re seeking to appeal the court’s decision after moving to reargue or renew. This article will explain those nuances.

If you’re seeking to reconsider the court’s decision on a motion you lost when you defaulted, don’t move to reargue or renew.¹⁵⁹² Move to vacate a default under CPLR 5015(a). Likewise, if you’re asking a court to reconsider a trial decision, move under CPLR 4404.¹⁵⁹³ This article will not discuss these motions.

Motions to Reargue and Renew: General Information

A party may move to reargue or renew. The court may not reconsider its own decision sua sponte if doing so affects a party’s substantial right: “Pursuant to CPLR 5019(a), a trial court has the discretion to correct an order or judgment which contains a mistake, defect, or irregularity not affecting a substantial right of a party, or is inconsistent with the decision upon which it is based. However, a trial court has no revisory or appellate jurisdiction, sua sponte, to vacate its own order or judgment.”¹⁵⁹⁴

Your motion to reargue, renew, or both should be made returnable to the judge who “signed the [original] order”¹⁵⁹⁵ unless the original judge is unable to hear the case.¹⁵⁹⁶ The rule is meant to prevent a judge sitting in the same court from reviewing, in an appellate capacity, another judge’s decision.¹⁵⁹⁷

Some exceptions exist. If the “original motion was ex parte, granted on default, or ‘so ordered’ upon a stipulation,” you don’t need to make your motion to reargue or renew returnable before the same judge.¹⁵⁹⁸ Under these circumstances, any judge of the same court may hear your motion.

If your case has been reassigned to another judge, the judge has the discretion to refer the motion to reargue or renew to the original judge.¹⁵⁹⁹

Under CPLR 2221(b), the Chief Administrator of the Courts “may by rule exclude motions within a department, district or county from the operation of subdivision (a) of this rule.”

Move formally to reargue, renew, or both. Practitioners often write letters to the court asking the court to reconsider its decision. A judge might ignore your letter because you haven’t formally moved to reargue, renew, or both.¹⁶⁰⁰

Motions to reargue, renew, or both are like any other motion. They must be on notice to your adversary.

Many practitioners move by notice of motion. But some practitioners move by order to show cause. Moving by order to show cause gives the judge an opportunity to decide whether to entertain your motion.¹⁶⁰¹ When a court declines to sign your order to show cause, it “effectively kill[s] the motion.”¹⁶⁰² You won’t have the opportunity to argue the motion; your adversary won’t need to spend time and money opposing the motion. If the court declines to sign your order to show cause, you (and your client) may choose to appeal the original decision.¹⁶⁰³ The Legal Writer discusses more on appeals below.

As part of your motion papers, you may submit affirmations, affidavits, exhibits, and a memorandum of law.

Your adversary — the party responding to your motion to reargue and renew — may submit opposition papers. In response to your adversary’s opposition papers, you may submit reply papers.

If you move by order to show cause, however, a court might not allow you to submit reply papers.¹⁶⁰⁴

Under CPLR 2221(d)(1) and (e)(1), you must identify whether your motion is a motion to reargue or to renew, or both; you must also set forth your basis for the motion. Identify your motion as follows: “Plaintiff’s Motion to Reargue and Renew.” Or “Defendant’s Motion to Reargue.” Or “Defendant’s Motion to Renew.” It’s best to identify which order — include the judge’s name and the date — you’re moving to reargue, renew, or both. Example: “Plaintiff’s Motion to Reargue Hon. Claire Lex’s June 24, 2014, Decision and Order.”

Practitioners will usually move to reargue and move to renew in the same motion. Identify your motion as a motion to reargue and renew only when your proof and the relief you’re seeking is for both reargument and renewal. In your moving papers, discuss separately your basis for moving to reargue and your basis for moving to renew. The court must consider each motion separately.¹⁶⁰⁵

Misidentifying your motion as a “motion to renew and reargue” even though the basis for your motion is for reargument might not be critical, however. A court might deem it a motion for reargument.¹⁶⁰⁶

Whether you’re moving to reargue or moving to renew, or both, attach a copy of the court’s original order — the order that’s the basis for your motion for reargument, renewal, or both — as an exhibit to your motion papers.¹⁶⁰⁷

Courts are divided about whether you need to include all the papers that the court considered in ruling on its original decision in your motion to reargue, renew, or both.¹⁶⁰⁸ CPLR 2221 doesn’t list what papers you need to submit on motions to reargue or renew. The Legal Writer recommends that you include all your papers: Doing so ensures that the court has a complete set of papers. It also shows that you’re trying to help the court rule for you. Providing a complete set of your initial moving papers shows the court that you’re honest.

If the substance of your motion to reargue or renew, or both, is frivolous, the court might consider sanctioning you.¹⁶⁰⁹

Motions to Reargue

By moving to reargue, you’re seeking to “convince the court that it was wrong and ought to change its mind.”¹⁶¹⁰ You’re bringing to the court’s attention a substantive error you want the court to correct.¹⁶¹¹

Basis for the Motion

Your motion to reargue must persuade the court that it overlooked relevant facts or that it misapplied controlling law.¹⁶¹²

If the court overlooked relevant facts, explain how the court’s factual finding was wrong. Explain to the court what facts it overlooked. Refer to the facts from the original moving papers. Show the court how the correct facts would change the court’s decision.¹⁶¹³ If you, rather than the court, overlooked relevant facts, that’s not a sufficient basis to move to reargue.

Your motion to reargue must be based on the papers on which the court relied to make its original decision.¹⁶¹⁴ If you never included the relevant facts in your initial papers — papers the court relied on to render its original decision — the court couldn’t have overlooked something it had no opportunity to consider.

If the court misapplied the law, explain in your motion to reargue that the court misconstrued or misapplied a relevant statute, rule, or case.¹⁶¹⁵ Explain how the court should have applied the relevant statute, rule, or case.

If the law changed since the court’s original decision, move to renew, not reargue.¹⁶¹⁶ The Legal Writer will discuss motions to renew in the next issue of the Journal.

In your motion to reargue, you may not repeat an unsuccessful argument you raised in the original motion.¹⁶¹⁷ The purpose of a motion to reargue “‘is[n’t] to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided.’”¹⁶¹⁸

You may not raise new arguments or advance new theories you never raised on the original motion.¹⁶¹⁹

Time

You have 30 days to move to reargue.¹⁶²⁰ The 30-day period is calculated from “service of a copy of the order determining the prior motion and written notice of its entry.”¹⁶²¹

A court has the discretion to hear a late motion to reargue.¹⁶²²

Move to reargue before your time to appeal the original decision expires.¹⁶²³

One scholar has noted that after the Legislature amended...