New York County - Civil Branch
Motions / Special Proceedings by Notice
MOTIONS AND SPECIAL PROCEEDINGS
BY NOTICE OF MOTION / PETITIONConcerning: Intake and Processing of Motions on Notice/Special Proceedings / Procedures for Receipt of Papers in the Motion Support Office Courtroom (Room 130) / Scheduling of Argument / Publication of the Room 130 Calendar / Post-Submission Procedures -- Decisions and Settlement of Orders
NOTE: Important changes were made by legislation effective July 3, 2007 to the Civil Practice Law and Rules regarding the timing and service of motions and cross-motions.
Motions made by notice of motion and petitions and notices of petition in special proceedings are processed by the Motion Support Office (Room 119). There are some differences in electronically-filed cases, which are explained in the Protocol on Courthouse Procedures in E-filed Cases on this website (under "E Filing").
A. INTAKE AND PROCESSING OF MOTIONS/SPECIAL PROCEEDINGS
Time to File: Original moving papers with affidavit of service for motions brought on by notice of motion or special proceedings by notice of petition are to be delivered to the Motion Support Office at least five business days prior to the return date.
Required Papers, Court Computer, Sequence Numbers: In an unassigned case, counsel must submit an RJI and exhibit an index number receipt as proof that an index number fee was paid. If the filer is a party to a case in which someone else purchased the index number, a receipt showing that the purchase has been made can be obtained from a computer terminal in the County Clerk’s Office. If the party submitting the RJI wishes to have a matter assigned to the Commercial Division, the RJI must be marked to show that the case is a commercial one and it must be accompanied by a signed statement in support of the Commercial Division assignment and a copy of the pleadings (Uniform Rule 202.70 (d)). Motion Support will process the RJI and randomly assign an unassigned case. Once the fee for the motion, if required (see below), has been paid, Motion Support will record the motion and the return date in the court's Civil Case Information System ("CCIS") computer, and give the motion an identifying number (a "sequence number," such as "Seq. No. 2"), which will also be recorded in the computer. The next motion presented to the court will be assigned the next number in numerical order. Cross-motions are not assigned sequence numbers, i.e., they are treated as appendages to the main motion for processing purposes.
In special proceedings and with regard to motions pursuant to CPLR 3213, counsel should file the original petition and a summons and the original motion papers with the County Clerk to commence the case. CPLR 304. A duplicate original of the petition, the original notice of petition, and an original affidavit of service in a special proceeding, and a duplicate original of the 3213 papers and an original affidavit of service in any such motion-action shall be filed with the Motion Support Office.
1). Fees on Motions and Cross-Motions
A motion fee must be paid on motions made in writing by notice of motion, order to show cause or ex parte after the commencement of an action. For this purpose, the term "action" shall mean any application to the court that requires the assignment of an index number, regardless of whether a formal pleading is filed. Applications or motions that commence an action and for which an index number fee must be paid require no motion fee. Thus, for example, an application commencing an Article 78 or other special proceeding or a motion pursuant to CPLR 3213 would not require a motion fee because this application or motion requires an index number fee. An ex parte application for pre-action disclosure (CPLR 3102 (c)) would likewise not require payment of the motion fee. However, any motions made after the initial applications in these situations would require payment of the motion fee. A motion that is the initial application in a case commenced by the filing of a summons and complaint would require a motion fee since the filing of the summons and complaint rather than the application itself would require the purchase of an index number. Uncontested matrimonial matters do not require payment of the motion fee.
The fee must be paid on written cross-motions filed in opposition to motions on which a fee is required and also in opposition to applications or petitions for which a motion fee is not required.
The fee must be paid on post-judgment motions and cross-motions made in writing.
2). Proceedures for Fee Payment for Motions/Cross Motions
Attorneys making motions by notice of motion should present the papers to the Motion Support Office (Room 119, 60 Centre Street) in the first instance. The staff of that office will inspect the papers for form and, if they are satisfactory, mark them indicating that they are acceptable for filing. This review will be conducted prior to the payment of the motion fee in order to ensure that fees are not paid with respect to motions that are defective and will be rejected (e.g., motions lacking proof of service or noticed for the wrong date.) The filer shall then carry the papers to the Cashier of the County Clerk in Room 160 on the first floor of the 60 Centre Street courthouse and pay the $ 45 fee. When the fee is paid, the County Clerk will place on the front of the notice of motion proof of payment in the form of a cashier’s receipt stamp. The filer should then return to the Motion Support Office and deliver the papers. The Motion Support Office will not accept motions that do not bear the cashier’s receipt stamp.
The same process should be followed with cross-motions except that, after preliminary review in Room 119 and the obtaining of the cashier's receipt stamp, the papers should be delivered to the Motion Support Office Courtroom (Room 130) on the return date. The staff of the Motion Support Office Courtroom will not accept cross-motions that lack the stamp; once the Motion Support Office (Room 119) has approved the cross-motion for form and so marked the papers, the filer must pay the fee and return to the Courtroom to hand in the papers. The Motion Support Office will accept the cross-motion bearing the cashier’s receipt stamp even if the call of the calendar has concluded in Room 130 provided that the papers are submitted the same day as the call (and also, of course, that the papers were timely served and are in compliance with the procedures of the Courtroom).
The staff in court Parts will likewise accept cross-motions on the call of the calendar in the Part only if they bear proof of payment of the fee in the form of the cashier's receipt stamp.
Attorneys in electronically-filed cases can pay motion and cross-motion fees on-line using a Visa or Mastercard credit or debit card.
B. MOTIONS MADE IN MORE THAN ONE CASE ON A SINGLE SET OF PAPERS
On occasion, attorneys may wish to make a motion in more than one case on a single set of papers. In such cases, by definition consolidation will not have been directed since consolidation signifies the combination of more than one case into a single one with a single caption and index number and ending in a single judgment. If more than one case is consolidated for joint trial, on the other hand, the cases remain separate, will end in separate judgments and are merely tried together. Where counsel seeks to make a motion affecting more than one case using a single set of papers, the moving papers should bear only one caption and index number, that of the case in which the motion is being made, which may be the principal case of the group involved. Counsel should not place a series of captions and index numbers on the single set of moving papers since this may lead to confusion and court staff will be unable to determine under which case to record the motion in the court’s computer and in which file to place the papers.
The court is eager to minimize burdens on counsel whenever possible. Therefore, the court will not require counsel to file multiple sets of the same motion papers, including possibly numerous and lengthy affidavits, affirmations and briefs. Instead, the moving party should file one set of papers in the main case or some other single case using the caption for that case and its index number. Obviously, the moving attorney must be counsel of record in the case in which the motion is being made. If that counsel or any other wishes to make the identical motion in a related case, counsel should submit a notice of motion in the related case bearing only the caption and index number for that related case, and should attach thereto an affirmation/affidavit in which counsel refers to and adopts the motion papers and arguments made in the first case. This process of incorporation in separate, very brief motion papers should be repeated in each related case in which a party wishes to make the identical motion. This method will achieve efficiency for all concerned while maintaining an orderly and accurate process and record and sound record keeping.
The Motion Support Office (Room 119) will reject motions made with multiple captions and require resubmission in accordance with the procedure outlined here.
C. RETURN DATE SUBMISSION PROCEDURE -- ROOM 130
Place of Return and Return Date: All motions/proceedings brought on by notice of motion or notice of petition, in both assigned and unassigned cases, shall be made returnable in the Motion Support Office Courtroom (Room 130) on any business day at 9:30 A.M.
Motion Calendars: The Motion Support Office prepares various calendars for the motions that appear in the Motion Support Office Courtroom daily. One calendar covers new cases and identifies the Justice to whom each has been assigned ("Initial Motion Calendar"), and one covers cases already assigned to a Justice ("Submission Calendar"). These same two types of calendars are also published separately for Commercial Division motions and for motions in electronically-filed cases.
The Courtroom also maintains a "Three-Day Submission" calendar, used when a party or parties seek an adjournment but fail to comply with the Courtroom's procedures. The case may be put over for three days to allow compliance with those procedures, as described further below.
Advance Publication of Room 130 Calendars: Two days prior to the return date, the New York Law Journal will publish, in alphabetical order, the calendars of all motions returnable in the Courtroom on that date. This information is also available from the court's Supreme Court Records On-Line Library ("Scroll") and from private information services.
Basic Procedures in Room 130 - - Collection of Papers: The purpose of the Room 130 procedures is to achieve an easy and efficient means for attorneys to submit and the court to collect all opposition, cross-moving and reply papers in connection with motions on the calendar. Each day in the Motion Support Office Courtroom, commencing at 9:30 A.M., all motions returnable that day will be "called" for the submission of these papers, which must be handed up at this "call" or, as described below, immediately before. Because hundreds of motions appear on the Room 130 calendars every day, motion papers (other than the moving papers) cannot be accepted on any day prior to the return date, with two exceptions: (i) counsel who have no office in Manhattan may submit papers by mail or in person; and (ii) in the case of courtesy hard copies submitted in electronically-filed cases (see the court's Protocol on Courthouse Procedures on the E-Filing page of this site). Except in e-filed cases, courtesy copies are not accepted. If opposition, cross-moving and reply papers are not submitted at the submission "call," the opportunity to do so will be lost (unless an adjournment is arranged or court permission is obtained).
Given the purpose of the Room 130 procedure, the substance of motions will not be addressed at the submission "call." No Judge is present. To the extent possible, motions submitted in Room 130 will be decided "on the papers." If argument is directed, it will take place on an announced date shortly after the day of submission. Attorneys are not required to be present in Room 130. Indeed, attorneys are encouraged to use service or clerks to deliver papers, or to agree among themselves to have one of them deliver papers for all parties by service or a clerk. No attorney need appear when an initial motion (accompanied by RJI) appears on the Room 130 calendar for the first time and an assignment of the case to a Justice is indicated. Counsel for the movant need not appear to "take a default" on any motion or for any other reason. Motions will be submitted, not marked off, in the absence of the movant. Opposing counsel similarly need not appear in person in order to avoid suffering a default. Delivery of papers by service or a clerk will suffice. The court's goal is to be able to collect papers on motions in an orderly fashion but without any attorney having to make an appearance in Room 130 at any time.
Applications, Adjournments, Submission of Late Papers - - Procedures for Notice to Counsel:
Once a motion is made, counsel for all parties are strongly encouraged to agree upon a briefing schedule and submit a stipulation of adjournment reflecting that schedule using service or a clerk. Where a briefing schedule has not been agreed upon, the movant can avoid the need to attend simply to see if anyone will hand up opposing papers by demanding papers as provided by CPLR 2214(b). To protect movants against the submission of late opposition papers or cross-motions, the Motion Support Office will screen motions in which such papers are submitted without a response (reply or opposition respectively) to ensure that proper time to respond has been afforded and it will sua sponte adjourn for one week cases in which such time has not been given.
The court has established procedures to ensure that no attorney need feel compelled to attend the "call" out of fear that another party to the case will appear and make an unexpected application.
Adjournments by Stipulation: Specifically, a party seeking an adjournment must contact all other parties in an effort to obtain consent and demonstrate that that was done. Adjournments are allowed in Room 130 in response to written stipulations. No more than three adjournments for a total of no more than 60 days are allowed except with the permission of the assigned Justice (Rule 202.8(e)(1) of the Uniform Rules for the Trial Courts), given by means of a so-ordered stipulation.
Adjournments by Affidavit/Affirmation of Consent: If all parties consent to an adjournment as allowed by these rules but a written stipulation cannot be obtained in time for submission, the applicant for the adjournment on consent may submit an affidavit or affirmation reciting that such consent was obtained. That document must state the reason for the adjournment request, how consent was obtained from all parties, when it was obtained, and the name of each attorney who gave oral consent. The affidavit/affirmation must have been served before the date on which the request for adjournment is made.
Adjournments by E-Mail: Parties seeking an adjournment on consent in compliance with the procedures outlined here may do so by e-mail. Counsel who wish to avail themselves of this procedure must submit the stipulation or affidavit/affirmation in PDF format as an attachment to an e-mail message sent to the following e-mail address: NYMOTCAL@courts.state.ny.us. Any such message may be sent up to 5 P.M. of the day before the return date of the motion to which it relates. In addition to the caption and the index number, each submission must identify the date on which the motion is then returnable. The party filing the paper must retain the original paper for 60 days in case any issue should later be raised about the PDF copy submitted.
Due to the volume of matters on the Room 130 calendar each day, it will not be possible for court staff to respond to every e-submission to indicate whether it has been granted or not. However, counsel should understand that requests for adjournment by stipulation or on consent recorded in an affidavit/affirmation of counsel will be granted if the request complies with the procedures of the Courtroom, including that with such adjournment there be no more than three adjournments for a total of no more than 60 days. Further, if there is a reason why a particular request by stipulation or on consent that is in compliance with Rule 202.8 (e) (1) cannot be granted, counsel will be informed by e-mail; if such e-mail response is transmitted the day before or the day of the calendar in question, the matter will be adjourned by court staff to the three-day calendar for clarification. Counsel may confirm the outcome of a request by consulting the “Motion Support Calendars” link on the home page of this site. The dispositions of each day’s Room 130 calendars are posted on the website at 3 P.M. in the afternoon of the same day.
Applications for Adjournment Not on Consent: If consent was not obtained from all parties prior to the return date, any party making an application for adjournment must submit an affidavit or affirmation in support of the application, reciting the reason for the requested adjournment and a description of the efforts made to obtain such consent, including the date when a contact was initiated or attempted, the means used, and the person contacted (if consent was refused) or for whom a message was left (if no contact was made). Furthermore, an applicant must, by phone, fax, e-mail, or mail transmitted with adequate lead time, advise all parties who have not consented that an application will be made, and the affidavit or affirmation must provide specifics on this as well. Applications for adjournments that are not properly supported will not be entertained. Rather, the matter will be adjourned for three days to permit compliance. These matters will then appear on the Three-Day Submission calendar. If there is no compliance, the Clerk of the Motion Support Office will mark the case submitted and refer it to the assigned Justice.
Submitting Papers Prior to the "Call": For the convenience of counsel, between 9:00 A.M. and 9:30 A.M. each day, in advance of the "call" , Room 130 accepts (1) written stipulations; (2) affidavits/affirmations reciting the required details as to an adjournment on consent; (3) stipulations, letters or other writings withdrawing motions; and (4) final papers (replies) or complete sets of papers on motions (oppositions and replies). For motions in which these items are handed in before the "call", no one need remain to answer the "call." Counsel/parties must advise the court, either between 9:00 A.M. and 9:30 A.M. or at the "call", of all motions or cases that have been resolved by counsel/parties themselves and all motions that the movant no longer wishes to pursue. If such resolution occurs subsequent to the "call", the assigned Justice must be advised as soon as possible, by written notice sent to the Part, so that the court does not do unnecessary work.
D. SCHEDULING OF ORAL ARGUMENT/APPEARANCES
Pursuant to request of some Justices, motions submitted in Room 130 will automatically be scheduled for a set argument date in the Part. Other Justices determine on a case-by-case basis whether to accept a particular substantive motion on submission, to require oral argument or to hold a conference. Counsel who wish oral argument must so request conspicuously on the front of their papers. See Uniform Rule 202.8(d). If argument is directed, notice will be given in Room 130 if service or counsel answer the "call"; the appearing party is expected to give notice to all parties and an announcement to this effect is made in Room 130. Where no one appears in Room 130, notice by mail will be sent by the court. If no notice of the one sort or the other is provided, counsel should understand that the motion has been taken on submission for decision on the papers. The results of the "call" are also published. See Section E.
In order that mail notice can be given, all attorneys should confirm that their names, addresses and phone numbers are correctly recorded in the court’s computer, which can be done by consulting the Supreme Court Records On-Line Library ("Scroll") on this website. If any error exists, it can be corrected by submitting a form to the Trial Support Office (Room 158).
E. PUBLICATION OF THE RESULTS OF THE SUBMISSION CALENDAR
The results of the submission process for all motions "called" in the Motion Support Office Courtroom are posted daily on the court's website (see "Motion Support Calendars"). Each posting generally occurs late in the same day on which the "call" took place. Calendars are also published in the New York Law Journal two days after each return date. This information identifies all motions that were marked submitted and automatically scheduled for argument/appearance, together with the Part and the date set down for argument/appearance; all motions that were marked submitted and sent on to the assigned Justices in cases assigned to Justices who do not automatically schedule argument or appearance; all motions that were marked "submitted on default"; all motions that were adjourned and the adjourned date; and all motions that were marked "withdrawn." The Supreme Court Records On-Line Library ("Scroll") will also reveal such information (with a brief time lag from entry of the data into the court's computer system).
F. POST-SUBMISSION PROCEDURES IN MOTION SUPPORT
1) Decisions: Issuance, Processing, Access to Copies with Entry Stamp, and Public Information
All decisions on motions and orders are delivered to Motion Support, which records in the court computer that a decision has been issued, the date thereof and whether the case has been disposed of, and makes similar notations as to long form orders. Decisions (other than those in matrimonial and Article 81 cases and cases under seal or decisions as to which the Justice directs otherwise) are posted on the Supreme Court Records On-Line Library ("Scroll") on this website within a few business hours after recordation of data in the court's computer. Except as to decisions that call for settlement of an order or judgment, the decisions as posted generally bear the County Clerk's entry stamp so that counsel may serve a notice of entry promptly and without having to make a trip to the courthouse to retrieve a copy of the decision with entry stamp. The court system offers a service, known as "CaseTrac" (at www.CaseTrac.com), that tracks, and provides notice of activity in, cases identified and listed by the subscribing attorney. The New York Law Journal also daily publishes notice of issuance of orders and decisions and the text of selected decisions. Counsel should not contact Chambers for information about decisions and orders.
2) The Settlement of Long Form Orders
Although the court strongly favors the use of short form orders and judgments, there are instances when settlement of an order or judgment is appropriate. When a Justice directs in a decision that a long form order or judgment be settled, that decision is recorded in the court’s computer system by Motion Support and the motion file with decision is held in the Order Section of the Motion Support Office in Room 119A. The settlement process takes place there. (There are a few exceptions. Orders in cases under Article 81 of the Mental Hygiene Law and orders for receivership and other fiduciary accountings are to be settled in the Guardianship and Fiduciary Support Office (Room 148) because of the special expertise required to review them. Orders in Commercial Division cases are to be settled in the Commercial Division Support Office (Room 148)).
A proposed long form order or judgment in compliance with Rule 202.48 of the Uniform Rules for the Trial Courts must be presented to the relevant back office, together with a notice of settlement which bears a settlement date, the date on which the order is to be ready for formal presentation to the Justice. This date and time must be at 9:30 A.M. no sooner than either five days from personal service of the proposed order or ten days from service by mail. Proof of timely service on the other parties must accompany the proposed order. If an order or judgment is submitted late (later than 60 days from signing and filing of the decision) and the proponent can show good cause for this tardiness, an affidavit or affirmation justifying the delay should be annexed to the proposed order, together with proof of service thereof. If persuaded, the Justice will consider the proposed order despite its untimeliness.
Any proposed counter-order or counter-judgment must be accompanied by a copy marked to indicate all respects in which it differs from the proposal to which it responds (Uniform Rule 202.48 (c) (2), as amended Sept. 1, 2007) and must bear an affidavit of service and have been timely served pursuant to the Rule. When the time to present a counter-order or counter-judgment has expired, the Order Section staff will review a submission. No appearance is required of any party and the settlement date is not the day on which the papers will actually be presented to the Justice. If there are defects, the submission will be returned to the party who presented it. Once the submission has been reviewed and found proper in form, it will be sent to Chambers. Formal changes will be made by the staff directly on the order/judgment.
The settlement process is expedited and simplified in e-filed cases. See the Protocol cited above.
Sometimes a decision will state "Submit Order." The submitting party should prepare a long form order and make it returnable to the Justice without notice. Counsel should deliver the proposed order to the Order Section of the appropriate back office.
Proposed orders or judgments that did not arise out of a formal motion (e.g., out of a conference or trial) should be submitted to the Part of the assigned Justice.
July 2007
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