NY CPLR: motion practice

Flashcard maker : Lily Taylor
What is a motion?
an application for a court order
MTD/answer must be filed within____
20 days of service of the complaint
Motions may be made either____or____
orally at trial or in writing
Ex parte motions____
(1) no notice to other party
(2) generally disfavored
(3) generally not appealable
Motions on notice____
(1) a party who opposes the motion may file answer, and the moving party may file a reply
(2) contents: must specify date/time/place of motion
(3) supporting affidavits/grounds/relief sought must be included
A motion is deemed to be made when____
notice is served, either upon delivery (for personal service) or upon mailing (for mail service).
Service: 8-2 rule
If notice is personally served:

(1) it must be served at least 8 days before it is to be heard.
(2) The answering affidavit must be served 2 days before the hearing.

(Add 5 additional days if service is by mail–>must be served 13 days before it is to be heard)
(add 1 additional day if overnight mail)

Service: 16-7-1 rule
If a movant wants to preserve the right to file a reply:

(1) notice must be served at least 16 days before the hearing.
(2) The answer must be served at least 7 days before the hearing.
(3) The reply is due 1 day before the hearing.

(Add 5 additional days if service is by mail (21 days before hearing))

(Add 1 additional day if overnight mail)

Expedited motions
Used when an accelerated hearing date is needed (e.g. with TROs)–> movant must:

(1) file a motion to show cause,
(2) accompanied by an affidavit,
(3) along with the usual procedural requirements for a motion.

Cross-motion (3 or 7 rule)
Is for when the non-moving party also seeks some kind of affirmative relief–>this motion must be served:

(1) 3 days before the hearing date,
(2) unless the original movant preserved their right to a reply, in which case this motion must be filed at least 7 days before the hearing date.

Motions: what happens when they are decided?
(1) judge’s order must be filed with the other motion papers
(2) winning party must serve a copy of the order on the loser
When can a party appeal and adverse motion ruling?
within 30 days of service of the order
Decisions on ex parte motions
Generally not appealable, but the loser can file a motion to vacate the order, and a denial of that motion may be appealed
Motion to reargue
For purposes of overturning a prior order:

(1) must be based on facts or law that were overlooked
(2) must be made within 30 days of service of prior order
(3) denials are not appealable

Motion to renew
For purposes of overturning a prior order:

(1) must be based on new facts not offered in the prior motion or
(2) a change in the law

Motion to vacate
Request that the court withdraw an order (i.e., for lack of jurisdiction, fraud, etc.)
Motion to modify
Request that the court alter a prior order (e.g. b/c order covers matters not in issue)
Motion to resettle
Request that the court correct errors or omissions as to “form” (cannot be used to make substantive changes to the order)
A stay
(1) Preserves the status quo temporarily;
(2) affects interests “inside” the proceeding itself (unlike injunctions)
(3) are issued AUTOMATICALLY when an appeal is filed; when a motion to dismiss is filed; when a motion for summary judgment is filed
(4) courts can also issue stays at their discretion
Motion to dismiss (in whole or in part): grounds
– document defense (when there is a document that is dispositive of the lawsuit, e.g. a deed)
– pendency of another action between the same parties
– failure to state a cause of action
– lack of personal jurisdiction
– lack of service
– failure to join a necessary party
– lack of subject matter jurisdiction
– lack of legal capacity to sue
– pendency of another action between the same parties
– counterclaim not properly interposed
– affirmative defenses
Motion to dismiss: affirmative defenses
i) Arbitration and award;

ii) Collateral estoppel;

iii) Discharge in bankruptcy;

iv) Infancy or other disability of the moving party;

v) Payment;

vi) Release;

vii) Res judicata;

viii) Statute of limitations; or

ix) Statute of frauds.

Motion to dismiss for failure to state a cause of action: how the court evaluates
(1) The court must assume that all the allegations in the complaint are true, and even if they are all true, there is still no valid cause of action
(2) the court generally does not consider evidence outside of the complaint (EXCEPT when extrinsic evidence establishes, without question, that the plaintiff’s basic premise cannot be true)
In response to motion to dismiss, leave to amend the complaint should be____
freely given
Motion to dismiss a defense
Used by the plaintiff when the defendant’s defense is either:

(1) not stated properly or
(2) has no merit

(must be filed before service of the responsive pleading is required–>this usually means it must be filed before the ANSWER needs to be served)

How many times can a motion to dismiss a cause of action be filed?
Only once, but it can give multiple grounds
Defenses that may be waived if not raised in motion to dismiss or answer____
– documentary evidence
– lack of capacity
– pending action
– affirmative defenses
– improper counterclaim

(if waivable defense is raised, it’s preserved)

Defenses that may not be waived
– lack of subject matter jurisdiction
– failure to state a cause of action
– failure to join a necessary party

(these can be raised at ANY TIME and the COURT can raise them on its own)

If D raises improper service of process in his answer
he must make a motion for summary judgment within 60 days after service of the pleading
Converting a motion to dismiss into a motion for summary judgment____
(1) Applicable to pre-answer MTD–>the court can convert this into a motion for summary judgment
(2) the impact is that the court’s determination becomes one that is on the merits (i.e. has res judicata effect)
MTD automatically extends time to file responsive pleading
(if necessary) for 10 days after the decision on the motion
Appealing an order on a MTD (granting or denying)
Allowed AS OF RIGHT (different from federal rule)
MFSJ: timing
(1) may be field any time AFTER D has served his answer, BUT
(2) court may set a deadline after which no summary judgment motion can be filed–no earlier than 30 days after note of issue (i.e. the date on which the court enters the matter on the calendar)
(3) If no date set, default rule is no later than 120 days after note of issue (except with leave of court)
Can a court raise an MFSJ on its own?
No
Can it convert a MTD to an MFSJ on its own?
Yes, after notice to the parties
MFSJ: standard
(1) must be granted if no triable issue of material fact

(2) Movant has burden of proving prima facie entitlement to judgment as a matter of law

(3) If so, burden shifts to non-movant to raise triable issue of fact

MFSJ: number and grounds
(1) motion can be made more than once (unlike MTD); (2) any ground on which an MTD could have been made can be used as a basis for MFSJ (as long as the objection has been preserved in the answer)
MFSJ: evidence to prove
MAJOR SOURCE = affidavits:

(1) must be made by person having knowledge of the facts
(2) must recite all the material facts
(3) show there are no issues of material fact to be determined at trial
(4) show that there is no defense to CoA/CoA has no merit
(5) usually not by an attorney
(4) affidavit can be self-serving

OTHER EVIDENCE CAN ALSO BE USED:
– documentary evidence
– hearsay/dead man statute communications (can be used–>evidentiary rules not strictly applied to MFSJ)

MFSJ: disclosure (i.e. discovery) during pendency of the motion____
Generally suspended, but court can order a continuance to permit further affidavits to be obtained
Filing a counterclaim ____
does not preclude moving for summary judgment
If MFSJ is denied____
case moves to trial
MFSJ in lieu of complaint
Granted only when the action is on an instrument for the payment of money (e.g. a check) or on a prior judgment

Party may only serve the instrument or judgment along with the motion

If denied, the parties are deemed to have filed a complaint and answer

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