Motion Practice

Flashcard maker : Lily Taylor
There are 3 types are of corrective Motions

S- a motion to compel the P to SEPARATELY state & # each allegation in the pleading (CPLR 3014)

S- a motion for a more definite STATEMENT in the pleading

S- a motion to STRIKE irrelevant, prejudicial, or scandalous matter from a pleading.

Affirmative Defenses MTD 3211 SPARE RIBS
CPLR 3211(a)(5) seeks Dismissal based on 9 grounds, which can be asserted in a motion to dismiss &/or in the D’s answer as Affirmative Defenses.




R- RELEASE was given by the P to the D either in a signed writing or it was made in open court

E- collateral ESTOPPEL
CE: issue preclusion and it bars a party from relitigating

issue raised in a prior proceeding

R- RES JUDICATA-bars all other pre-adjudicate claims arising out of the same transaction


B- P’s claim against D was discharged in BANKRUPTCY


IF to success assert CE
To successful assert CE show “IF”:
IF- CE is available if issues are identical & the party against whom CE is being asserted previously had a full & fair opportunity to litigate that issue:

I-Identify Issues-the identical issue was previously decided in an identical action. The pty against whom CE is being asserted had a…F&FO to Litigate hat that Issue

F-Full & Fair Opportunity to Litigate Issue

Stare Decisis
Rule of Stare decisis- means that a crt should stand by things already decided, the same underlying theme also applies to the following doctrine:
1. Law of the case
2. Res judicata
3. Collateral Estoppel
When thinking of SJ , think of LIPS

L – the motion can be decided as a matter of law

I – there are no issues of material fact to litigated (except damages or a 3211(a) issue)

P – the court can grant partial SJ

S – the court can search the record but only on issues raised on the motion papers

3211(a)(6) motion by P
3211(a)(6) is the only 3211a Motion that’s made by a Plaintiff.

It seeks dismissal of a non-interposable counterclaim (i.e. when a P sues in a fiduciary capacity the D can cc against the P only in the P’s fiduciay capacity & cannot interpose personal cc against the P) for example:
A parent suing on behalf of a child
if the plaintiff is a partnership then the D cannot cc personally against 1 of the partners.

3211(a)(7) seeks a dismissal based on the Ps failure to assert a COA. Here the court will look only at the Ps complaint to see if she has stated a cognizable COA. For example, NY refuses to recognize a COA for:

1. Intentional affliction of Emo Distress against gov’t agencies or such a claim between spouses (Civil tort claims)

2. Education malpractice
(a)-NY & majority of states don’t recognize such a claim b/c crts & juries should not determine the validity of Educ. Policies

3. A NY child’s claim against a parent for the parents lack of parental supervision resulting in personal injury to the child

4. A defamation claim where the P does not set forth in detail the defamatory words used the D where the specific words are not set forth in the complaint

scope of a crts review for these are much different in a 3211(a)(7) Motion b/c the crt examines the sufficiency of the pleading whereas in a 3212 Motion the Crt examines the sufficiency of the evidence underlying the pleading.

Service of Answer to a Motion
If any 3211(a) motion is denied then the D has 10 days in which to serve answer. 15 if service by mail.
Crts discretion 3211 & 3212 motions
A court can convert a 3211 motion into a 3212 motion for summary judgment but first it must give all parties notice of its intent to do so so that each party can come forward with all relevant evidence.

When a summary judgment motion is made the trial court or the appellate division not only can deny SJ to the moving pty but it can search thee record and grant SJ to the nonmoving party but only on issues or claims that were raised in the 3212 Motion NYAA pg140 the subject of the summary judgment motion before the court.

Example: P moved for SJ against D the Crt Denied P’s motion but in searching the record it granted SJ for the D even though the D had not requested SJ.

Crt will Automatically deny a 3212 Motion unless is addresses ALL pleadings in the action.

Motion by P response to D’s anws-defenses
A 3211(b) motion is made by a P to dismiss one or more defenses in the D’s answer as a matter of law.
SJ 3212
A P or D can move for summary judgment on any cause of action after issue is joined (afterthe D has served the answer). This motion is designed to expedite civil litigation on those claims that the court can resolve as a matter of law. It is frequently used in mortgage foreclosures, debt collections, and breach of K cases but it can also be used in tort cases.

1. The party moving for summary judgment must set forth evidentiary facts sufficient to entitle that party to a judgment as a matter of law.
2. The burden of production then shifts to the opposing party to raise a triable if an issue of material fact.
Summary judgment will be granted (full or partial-only on 1 claim) when the court determines there is no triable issue of material fact and that the claim can be decided by the court as a matter of law.

LATEST a SJ can be Made: No motion for summary judgment can be made no later than 120 days after the notes of issue has been filed w/Crt (where the case is placed on the trial calendar after all Pre-Trial Discovery is complete) unless good cause is shown for making the motion later. After 120days from that date a crt will not entertain a motion for SJ unles Good Cause is shown for lateness (very rare) NYAA pg141. CPLR 3212a.
A judge can shorten this 120 day period but not to less than 30 days from filing the note of issue.
If the 120 days for making a SJ motion falls on a Sat, Sun., or public holiday then the time for filing is extended to the next biz day.

M for SJ in lieu of a complaint 3213
3213 motion for summary judgment in Lieu (instead of) of a complaint

This remedy is Ltd to instruments for the payment of $ only If proof o/s of the instrument is needed 2establish the P’s claim, other than proof of nonpayment then the instrument doesn’t qualify for 3213

The procedure for 3213 is to attached a summons for a motion to summary judgment and to have the motion returnable at least 20, 30, or 40 days after service on the D was complete.

Examples for 3213
a) A negotiable instrument (a check, IOU)
b) A guarantee (a surety) on a loan or mortgage note
c) A default judgment obtained from any US court
d) A foreign county judgment. NY is very liberal and generous in enforcing foreign county judgments provided its judicial process is fair (it complies with due process)

when 3211, 3212, & 3213
When a 3211, 3212, or 3213, it automatically stays any pretrial discovery until that motion is decided unless
1) The court orders otherwise or
2) The motion involves solely an issue of defective service of process.
Trial Motions
A TM for judgment as a matter if law usually made after an opposing pty has full present her case.

can be made either during trial (directed verdict) or the motion can be made after the jury’s verdict which is called a judgment N.O.V. This motion asserts that it is impossible for the opponent to win. (i.e.: during trial I move for a directed verdict: No Prima Facie P cannot win b/c he has not proved & pleaded)

It is a SJmotion during trial or immediately after the verdict. Usually it is made after the opponent case has been fully presented unless earlier that party makes a fatal admission.

By making this motion during the trial it does not waive the moving parties right to a trial by jury and it does not waive the right to present further evidence if the motion is denied.

Post Trial Motions
w/in 15 days after a jury verdict crt on its own or on motion of an aggrieved pty MAY set aside jury’s verdict on the following grounds:

1) Enter a Directed Verdict NOV for the other pty as a matter of law J.N.O.V.
a. -JNOV means SJ to the other pty not withstanding the jury’s verdict.

2) Request a new trial in the interest of justice (start all over again) b/c there was insuff E to support jury’s verdict.

3) Order a new trial only on the issue of damages b/c the amount awarded by the jury was either excessive or inadequate. Here the court must find that the amount awarded by jury deviated materially from what is “reasonable compensation” for the Ps injury. NYAA145-145
Once a pty has stipulated to the agreed amount suggested by the crt She is Prevented from appealing the damages issued b/c by stipulating to the new amount she no longer considered an aggrieved pty BUT this stipulation does NOT PREVENT:
1) the non-stipulating pty from appealing the new amount or
2) the stipulating pty from appealing any othe issue not involving damages. NYAA pg145
The court cannot substitute a new amount for the jury’s verdict but it can order a new trial solely on the damages issue unless a party agrees to a specific increased or decreased amount.

Motion to Dismiss 3212(a)(7) for failure to state a claim
only granted if, taking all of the allegations in the relevant pleadings as true, there is no possible way in which a pty could recover.THe pty opposing the motion is entitled to every favorable inference, & if there exists any claim for relief under the substantive law, the motion must be denied.

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