tag:blogger.com,1999:blog-4672059649275329383.post8164102181241624754..comments2023-07-07T11:53:57.220-04:00Comments on Long Island Lawyer Law Blog: New York Motion PracticeScott Kreppeinhttp://www.blogger.com/profile/12387980437999460501noreply@blogger.comBlogger19125tag:blogger.com,1999:blog-4672059649275329383.post-5385931564937189282016-02-07T11:34:28.946-05:002016-02-07T11:34:28.946-05:00Scott, I'm a non-attorney pro-se litigant who ...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. <br /><br />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. <br /><br />As it stands, the order's useless to me. I haven't entered it yet and am unsure what to do.<br /><br />1. Is it appropriate to: move for a re-hearing, or use another style of motion or action?<br /><br /> Or must I -- or even CAN I -- start from scratch with another ex parte OSC?<br />Of course, I'm looking for books or other source material on these topics.<br /><br />2. Where do I find tolling limits on this situation, or further actions I should take?<br /><br />Yours is the first blog I've come upon that always seems to make sense to me -- thanks!Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-4672059649275329383.post-29165420815492871962015-09-16T18:22:36.119-04:002015-09-16T18:22:36.119-04:00I have not practiced in Civil Court for many years...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 MirandaRenee Mirandanoreply@blogger.comtag:blogger.com,1999:blog-4672059649275329383.post-45850478626312444382015-07-12T15:08:40.502-04:002015-07-12T15:08:40.502-04:00Hey Scott!
Awesome Blog.
I recently had a situat...Hey Scott!<br />Awesome Blog. <br />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! Chrisnoreply@blogger.comtag:blogger.com,1999:blog-4672059649275329383.post-10508028361766132052015-05-08T21:04:20.370-04:002015-05-08T21:04:20.370-04:00Family court operates by petition rather than moti...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)Scott Kreppeinhttps://www.blogger.com/profile/12387980437999460501noreply@blogger.comtag:blogger.com,1999:blog-4672059649275329383.post-32218227554444190702015-05-08T21:02:10.278-04:002015-05-08T21:02:10.278-04:00A memo is not ordinarily an exhibit, if done deleg...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.Scott Kreppeinhttps://www.blogger.com/profile/12387980437999460501noreply@blogger.comtag:blogger.com,1999:blog-4672059649275329383.post-82750085736412157752015-04-28T10:46:51.409-04:002015-04-28T10:46:51.409-04:00Scott, if a temporary order of protection is then ...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?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-4672059649275329383.post-45981375531492480352014-10-24T11:27:19.846-04:002014-10-24T11:27:19.846-04:00Scott, if I am opposing the motion to dismiss and ...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? Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-4672059649275329383.post-69841222984984057652013-09-29T16:02:47.195-04:002013-09-29T16:02:47.195-04:00"Anonymous" is apparently already famili..."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. Scott Kreppeinhttps://www.blogger.com/profile/12387980437999460501noreply@blogger.comtag:blogger.com,1999:blog-4672059649275329383.post-15822907245612442922013-09-28T20:08:13.222-04:002013-09-28T20:08:13.222-04:00An affirmation is, basically, a type of affidavit,...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.Scott Kreppeinhttps://www.blogger.com/profile/12387980437999460501noreply@blogger.comtag:blogger.com,1999:blog-4672059649275329383.post-62090064102071818812013-09-13T02:01:28.930-04:002013-09-13T02:01:28.930-04:00discuss the limitations of a reply filed by a defe...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...Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-4672059649275329383.post-39432112359794936052013-09-08T18:46:58.212-04:002013-09-08T18:46:58.212-04:00That's true for client affidavits that are dra...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.<br /><br /> 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.Scott Kreppeinhttps://www.blogger.com/profile/12387980437999460501noreply@blogger.comtag:blogger.com,1999:blog-4672059649275329383.post-28097662228009672262013-08-29T08:32:51.517-04:002013-08-29T08:32:51.517-04:00Hi Scott,
Another attorney recently mentioned tha...Hi Scott,<br /><br />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?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-4672059649275329383.post-60482742254514146862013-04-28T21:52:21.567-04:002013-04-28T21:52:21.567-04:00An affirmation is for attorneys or medical doctors...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.Scott Kreppeinhttps://www.blogger.com/profile/12387980437999460501noreply@blogger.comtag:blogger.com,1999:blog-4672059649275329383.post-42285987451290152102013-04-28T20:55:48.665-04:002013-04-28T20:55:48.665-04:00Scott, when shoudl you use an affirmation and when...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? Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-4672059649275329383.post-14413026094057249322013-01-03T13:58:01.191-05:002013-01-03T13:58:01.191-05:00An OSC is presented immediately to the court, but ...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. <br /><br />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. Scott Kreppeinhttps://www.blogger.com/profile/12387980437999460501noreply@blogger.comtag:blogger.com,1999:blog-4672059649275329383.post-15061221172829875212012-12-20T10:19:12.394-05:002012-12-20T10:19:12.394-05:00I'm a confused. I thought the OSC was for imme...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?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-4672059649275329383.post-75955751071360649562010-11-11T01:29:47.373-05:002010-11-11T01:29:47.373-05:00scott you are spot on. as a pro se litigant that ...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.FDCPA_in_kings_countynoreply@blogger.comtag:blogger.com,1999:blog-4672059649275329383.post-12965685652062592312010-01-28T16:04:01.187-05:002010-01-28T16:04:01.187-05:00If you are filing a motion in NYS court, and most ...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. <br /><br />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. <br /><br />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.Scott Kreppeinhttps://www.blogger.com/profile/12387980437999460501noreply@blogger.comtag:blogger.com,1999:blog-4672059649275329383.post-72613806021898573772010-01-28T14:36:04.415-05:002010-01-28T14:36:04.415-05:00Is it procedurally sound to file a motion to dismi...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?Unknownhttps://www.blogger.com/profile/09261547673704459307noreply@blogger.com