Saturday, April 18, 2009

New York Motion Practice

Below are some thoughts on New York motion practice.  


A motion is made whenever you want to request that the Court issue an order.  Written motions can be made through either a Notice of Motion or Order to Show Cause.  

A motion on notice is the "standard" form for a motion.  The party making the motion chooses a return date and serves their adversary with notice that they will be making a motion on a particular date, in a particular courtroom, as well as any papers will be submited in support of the motion.  At a minimum, you need to serve your papers eight days in advance of the return date, bearing in mind that service by regular mail is not "compete" until five days after mailing. (CPLR 2214-2215).  Personally, I try to use methods of service that are completed immediately (e-mail or fax) whenever possible.  

The second method for making a motion, an Order to Show Cause, involves immediate Court intervention.  The moving party goes to the court with their motion papers (usually at the court's "ex-parte" part), and obtains an Order requiring the opposing party to appear on a certain date and time before a judge to oppose the motion.  Orders to Show Cause are more burdensome for the judges involved, and so should not be used unless there is good reason.  

There are two main reasons you would want to proceed by Order to Show Cause rather than Notice of Motion.  First, the Court sets the timeframe for the motion to be heard, so a short and specific schedule can be ordered and adjournments are more difficult to obtain.  Second, (provided the other party was provided with at least some notice, such as a phone call the day before, less such notice would be impractical), a judge can order immediate relief, such as a restraining order, injunction, or similar relief.


The Notice of Motion or Proposed Order to Show cause acts as a cover page to the main motion papers. 

The affirmation/affidavit is the main document in your motion papers.  It is the document to which you annex your exhibits and in which you make your written argument.  

Like every formal document submitted to a court, the affirmation begins with a caption, which should be clean and neat.  The rules are set forth in C.P.L.R. 2101, which says, essentially, each document should begin with a caption listing the name of the Court, the parties (all parties should be listed in summonses, complaints, and judgments; in other papers you only need the first-named parties and a notation such as "et al."), the index number, and a title identifying the nature of the document.  

New York State courts do not require memoranda of law.  Instead, they use what is called a "speaking affirmation."  Attorneys are permitted to submit both their legal and factual arguments in an affirmation.  An attorney's affirmation is not evidence, and factual statments must be supported by exhibits attached to the motion papers.  

Pro-se litigant (even if they are also attorneys), must use an affidavit instead of an affirmation.  An affidavit must be notarized, but the factual statements contained in an affidavit are considered evidence (provided the party making the affidavit has direct knowledge).  Supporting exhibits, of course, still help.  

In the Supreme Court, filing a motion costs $45; there is no fee in the NYC Civil Court or local District Courts.  There is no fee for responding to a motion.  You can find a form motion (formatted for NYC Civil Court), as well as other helpful forms, here.  

Below the caption, the party making the affirmation or affidavit identifies themselves.  An old rule of practice is that the writer's name is listed in all caps.  As an attorney, I would write "SCOTT J. KREPPEIN, an attorney duly admitted to practice before this Court, affirms the following under penalty of perjury."  If I were a pro-se litigant, the affidavit would begin "SCOTT J. KREPPEIN, being duly sworn, deposes and states."

After this first identification, every paragraph should be numbered.  In the first or first few numbered paragraphs, the writer informs the court of their relationship to the litigation, what the submission is for, and what the papers will argue.  For example, a pro se litigant submitting an affidavit in support of a motion would write:  I am the plaintiff in the above action, and make this affidavit based upon my own knowledge.  This affidavit is respectfully submitted in support of my motion for ABC, which should be granted because of X, Y and Z.  

These first paragraphs should provide a readable roadmap for your submission.  If you have four points, tell the court that you have four arguments and list them.  You can use bullets and sub-paragraphs if necessary.  If you haven't convinced the judge that you should win by the second page of your submission, then you haven't done your job right.  


The fact section should include four things: facts essential to your legal points; facts your adversary will undoubtedly rely on; enough procedural history and background to provide context; and a sparing dose of humanization.   Organization is key, and your facts need not be in chronological order.  You need to decide how to best present your case, and each case is different.  Whatever you do, you should get to the point early.  It is often good practice to start off with the pivotal event (the injury, the manner in which the contract was breached, etc.).  

You should have topic sentences.  Dates and witness names are not topics.  If you reference a date, it should only be because it is an important fact.  If you are referencing dates because of the time span between them, state the timespan, not just the date.  Don't make the court do math, they don't like that. 

Your statement of facts should be crafted as a coherent narrative.  Tell your story.  You do not want a balanced presentation: you want a coherant narrative that supports your side.  The narrative must be truthful, but don't make your adversaries' arguments for them.  

That said, there are two reasons to include adverse facts: either you want to prevent the shock of having not disclosed them, or you want to pre-emptively deflate your opponent's argument.  Dealing with a fact that hurts you is always a judgment call.  

Sympathetic but irrelevant facts should be used sparingly, and with decorum and respect for the judge's intelligent.  A brief statement of a plaintiff's injuries is appropriate, such as "P fell and suffered a broken arm."  A long, drawn out plea for sympathy is not. 


The discussion is your legal argument.  In law school, they teach you to make your arguments in four steps: identify the issue (and how it should be resolved), identify the applicable legal rule, apply the legal rule, and restate your conclusion.  My prior "resources" post provides links to a free case law research database, important statutes, and several other useful links.  


Motion papers conclude with a request for relief, which generally begins with something to the effect of "Wherefore, it is respectfully requested that an Order be issued...." and ends with "together with such other and further relief as is deemed just and proper."  In this paragraph, you should tell the Court exactly what you want it to order. 


In some courts, you are expected to appear on the return date prepared to argue; in others, all motions are done on submission.  If you are not sure about the procedures in the venue where your motion will be filed, you should check with that court's clerk, motion support office, or pro se office.   

Generally, judges are supposed to issue an Order deciding the motion within 60 days of when the motion is fully submitted.  (C.P.L.R. 2219).  In practice, however, a judge may take longer to issue a decision.  

Once an Order is issued, it should be served with notice of entry upon the other party, which starts the clock for when an appeal can be taken (30 days under CPLR 5513), and may have other significance.



How To Argue An Appeal
Notice of Entry and Notice of Appeal


  1. Is it procedurally sound to file a motion to dismiss a petition with just a memorandum of law in support and no affirmation or affidavit (caveat: the basis of the motion is that the action has been brought on 5 different occassions). Are there any treatises someone could refer for this type of answer?

  2. If you are filing a motion in NYS court, and most other courts, it should always be accompanied by an affidavit or affirmation. In NY, the affirmation is usually inclusive of the legal argument. If you want to file a memo of law, the affirmation or affidavit does not have to be complicated, and can just state the facts and the exhibits are are relying on.

    Since this is a "petition," I assume you are dealing with a special proceeding. Although it is common to file a motion to dismiss in a special proceeding, your response (sometimes called "Objections and Points of Law") can include legal argument as to why the proceeding should be dismissed.

    As far as a treatises, first off you should consult the actual rules: the C.P.L.R, administrative rules, and local rules for whatever court you are in front of. After that, the leading New York civil practice treatise is Siegal's New York Practice.

  3. FDCPA_in_kings_countyNovember 11, 2010 at 1:29 AM

    scott you are spot on. as a pro se litigant that is currently in heavy litigation right now i find your articles to be dead on point. thank you.

  4. I'm a confused. I thought the OSC was for immediate attention by judge the same day, but your article says court has 60 days to decide. Which is true? If they deny the OSC, do you get an order or letter? Then what happens? Can I send it as a regular motion?

  5. An OSC is presented immediately to the court, but the "order" is an order to "show cause," i.e. respond to the motion. The OSC can include a temporary restraining order seeking immediate emergency relief, but these orders are by definition temporary. If the Court grants the OSC, a return date is set, the other side has an opportunity to respond, and then the court will consider the motion on the merits and issue a decision. The timetable for a final decision is the same as with a motion on notice.

    If the court declines to sign the OSC in the first place, you would be informed by letter, or verbally, or it may be stamped "declined to sign" or something similar. The filing is essentially a nullity, and you cannot appeal the judge's decision not to sign it. You can proceed by notice of motion for same relief, but in doing so you should realize that there was probably a reason the court declined to sign it. If the court declined to sign it because what you were asking for was completely off-the-wall, you should bear in mind that there can be consequences for filing a frivolous motion.

  6. Scott, when shoudl you use an affirmation and when should you use and affdavit? Is the affidavit only for pro-se litigants or are there special situations for each?

    1. An affirmation is, basically, a type of affidavit, allowed for lawyers and doctors, who by statute can affirm the truth of their own statements without the need for being sworn before a notary. Anyone else needs an affidavit. Also, a lawyer's affirmation has no probative value as to facts where the lawyer has no personal knowledge. So, for example, a lawyer can affirm that they have not received a discovery response, but for a substantive factual statement it needs to be supported by an affidavit or other evidence.

  7. An affirmation is for attorneys or medical doctors who are authorized under NY Law to swear to their own statements without a notary. An affidavit is for anyone else. The only real difference is whether you need a notary, but in NY State practice attorneys will often include a memo and argument on the law within an affirmation.

  8. Hi Scott,

    Another attorney recently mentioned that an affidavit (of a party, witness, etc.) should NOT be an exhibit to a motion but rather simply inserted behind the attorney's affirmation. Are you aware of such a rule?

    1. That's true for client affidavits that are drafted specifically for that motion, where there is a request for relief in the affidavit (in which case they should also be listed in the notice of motion or OSC). Whether an affidavit is a moving paper or an exhibit depends on the circumstances. An attorney's affirmation is not evidence of factual statements, so you need affidavits or other evidence for factual statements. In fact, in some areas of practice, client affidavits are normally the main moving papers, and attorney affirmations are used on a limited basis, if at all.

      Third-party witness affidavits are nearly always treated as exhibits, as third parties usually do not have standing to request or join in a request for relief. Affidavits from the client that are not specific to the motion (i.e. from prior motions, or otherwise) should also be exhibits. Also, in dispositive motions where depositions are available, particularly in personal injury cases, client affidavits are carefully scrutinized and may be disregarded to the extent they are incomsistent with deposition testimony.

  9. discuss the limitations of a reply filed by a defendant's attorney where an exhibit to the reply affirmation raises an issue that was not raised by said defendant's attorney in the motion papers...

    1. "Anonymous" is apparently already familiar with the rule. Basically, a new issue or argument cannot be raised on reply, and if you did not meet your burden with your initial papers you can't do so on reply. Replies should be limited, in general, to responding to the arguments raised in opposition.

  10. Scott, if I am opposing the motion to dismiss and want to attach a memo of law as an exhibit to my attorney affirmation, what exactly should i include in my attorney affirmation?

    1. A memo is not ordinarily an exhibit, if done delegate from the affirmation (Federal rather than NYS practice) it is part of the moving/opposing papers that are placed before the exhibits. If doing them separately such as in Federal Court, your affidavit/affirmation lists the exhibits and succinctly states the relevant facts. The memo then contains a brief summary of the fact.

  11. Scott, if a temporary order of protection is then modified by a consent order and then becomes a full order of protection, do I move for a motion to dismiss or a motion to vacate the Order of Protection in a family court civil proceeding?

    1. Family court operates by petition rather than motion. It would be a petition to vacate or modify. (Check with the court or pro se clerk in that county, if available, if you're not sure)

  12. Hey Scott!
    Awesome Blog.
    I recently had a situation where a JSC ordered in the "personal delivery" provision of a Pltf's OSC that it and supporting papers be served upon pro se Deft (who later retained me) no later than 1 day prior to its return date. Pro se Deft appears and the Judge adjourns for two weeks to allow pro se Deft to hire counsel. I am retained 2 days prior to adjourn date and go in and the Judge gives me only 2 WEEKS to put in OPP papers (while Ptff had retained its counsel 7 mos prior to Pltf's OSC which is like 100 pages in length LOL). Ok, i know this is becoming verbose so here's the rub: I decided not to Oppose but to justifiably Cross-Move. Deft-New Client was late but finally supplied in good faith needed docs to me and we filed a Cross-Motion, however, as a result we were 2 days late in filing. Pltf's counsel "rejected" our papers. I thought well that's just crazy. When we went to Court the Judge called us to the bench and looked at me and said "you guys (me and deft-client) really threw in a monkey wrench when [you] cross-moved." I thought to myself, "what is he talking about???" Anyway, we agreed our cross motion would be withdrawn and deemed an Aff in Opp and the Court made the Pltf accept our papers. Finally, Pltfs Counsel serves me with a Notice for D & I on June 1 which states the items as specified therein are due June 9 ( her D & I is dated two weeks earlier than when I received them ;-) ;-) Anyway, thx for letting me vent!

  13. I have not practiced in Civil Court for many years. There were no filing fees when I did. Do you file and pay the fee before you serve the other party (so they get stamped copy) or can you do so after? Renee Miranda

  14. Scott, I'm a non-attorney pro-se litigant who brought an ex parte motion for an OSC to compel a member-run NYS nonprofit corporation to grant me an inspection the law requires. Defendant didn't show up on return date, and the judge issued a _final_ order substantially identical to the very simple argument in my motion/affidavit and proposed order - but under 'further relief' he limited the scope of inspection to docs/statements five years old or newer. No reasoning behind the limit was provided.

    The court effectively excluded from my examination precisely those years during which I have strong reason to believe an event occurred which is the primary focus of this inspection. Most curiously, it was done out of the blue; nothing in the law, my papers, my appearance for oral argument, or Defendant (in default)'s non-appearance comprised any mention of a five-year limitation. Defendant is a small, single-purpose and young (8 years) organization, not some gigantic 150-year-old conglomerate for whom an open-ended inspection might be onerous out of proportion to what is contemplated in the law.

    As it stands, the order's useless to me. I haven't entered it yet and am unsure what to do.

    1. Is it appropriate to: move for a re-hearing, or use another style of motion or action?

    Or must I -- or even CAN I -- start from scratch with another ex parte OSC?
    Of course, I'm looking for books or other source material on these topics.

    2. Where do I find tolling limits on this situation, or further actions I should take?

    Yours is the first blog I've come upon that always seems to make sense to me -- thanks!