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EX PARTE APPLICATIONS, ORDERS TO SHOW CAUSE, and OTHER APPLICATIONS


 

FORMS

EX PARTE APPLICATIONS, ORDERS TO SHOW CAUSE, AND OTHER APPLICATIONS

 

Concerning: Orders to Show Cause  /  Infant's and Other Compromise Orders / Ex Parte Applications and Related Applications on Notice (A Detailed Summary of Principal Applications)

All ex parte applications are to be submitted to the Ex Parte Office (Room 315) except in Commercial Division cases, in which the applications should be submitted to the Commercial Division Support Office (Room 119 A).  Attorneys submitting proposed orders to show cause or ex parte orders in electronically-filed cases must e-file such submissions as required by the Protocol on Courthouse Procedures for Electronically Filed Cases.  Generally, a Request for Judicial Intervention must be filed if an ex parte application is the first instance of a request for relief in an action or proceeding or if the application is a self-contained one. The RJI may or may not require the payment of the standard RJI fee depending generally upon whether the application is a discrete one or will require ongoing judicial supervision of an action or proceeding. For more information on this, see Commencement of Cases.

A. ORDERS TO SHOW CAUSE

Proposed orders to show cause ("OSC") brought on in cases other than those in the Commercial Division must be submitted to Room 315. The attorney seeking to present a proposed OSC shall proceed to the County Clerk's cashier's office in Room 160, pay the $45 fee, receive a cashier's receipt stamp on the OSC, and go to Room 315 to submit it. The Ex Parte Office records the proposed OSC in the court’s computer system, as well as the names of the attorneys for the movant and other attorneys, if known and not previously recorded in the system, and assigns the case if previously unassigned.

The Ex Parte Office also reviews proposed OSC's for form, in a process similar to the initial examination of motions on notice by the General Clerk's Office. All ex parte applications must comply with CPLR 2217(b). CPLR 6313(a) precludes the ex parte issuance of a temporary restraining order ("TRO") against a public officer, board, or municipal corporation of the State (which includes New York City) to restrain the performance of statutory duties. If an applicant seeks such relief, advance notice to the Corporation Counsel’s Office, the Office of the Attorney General, or agency counsel if the municipality is so represented is required.

Further, Uniform Rule 202.7 provides for notice except under certain circumstances. Specifically, pursuant to Uniform Rule 202.7 (f), upon an application for an order to show cause that seeks a temporary restraining order, the application must contain an affirmation demonstrating that there will be significant prejudice to the party seeking the restraining order by the giving of notice. In the absence of such prejudice, the affirmation must demonstrate that a good faith effort has been made to notify the party against whom the restraining order is sought of the time, date and place that the application will be made sufficient to permit the party an opportunity to appear in response to the application. It is the practice of this court that the applicant must notify the party against whom the restraining order is sought of the time and date that the application will be submitted to the Ex Parte Office. Further, counsel shall advise the adversary that he or she will inform the adversary of the place, date and precise time when the Justice will entertain the application. Once the papers have been submitted to the Ex Parte Office, applying counsel shall contact the Part of the Justice in question to determine when and where it will be convenient for the Justice to entertain the application. Counsel shall then promptly notify the adversary. Counsel shall not appear in the courtroom of the assigned Justice without having first made such an inquiry.

The clerks will advise the attorney who presents an OSC of any defects therein. The clerks will not purport to reject a proposed OSC (CPLR 2102 (c)), except as provided by Uniform Rule 202.5 (d), a statute or rule, or a specific order of the court. If counsel insists that an OSC be processed immediately regardless of advice by the clerk that the papers contain defects, except under the circumstances indicated, the clerk will process the papers.

A proposed OSC not of an emergency nature is reviewed expeditiously. If an OSC cannot be processed within a short time, the presenting attorney should return as instructed or send a clerk to Ex Parte in order to deliver the papers to the assigned Justice. If the proposed OSC requests immediate attention because of an emergency, an affidavit or affirmation is required explaining the nature of the claimed emergency. The Ex Parte Office will attend to the matter immediately and will ask counsel to remain. If oral argument of a motion brought on by OSC is sought, counsel must so indicate on the front of the proposed order. See Rule 202.8(d) of the Uniform Rules for the Trial Courts. Should the proposed OSC be signed, the Justice decides whether argument is appropriate and, if so, will indicate as much in the OSC. If the OSC contains a TRO or oral argument is directed, the motion should be made returnable directly in the IAS Part, usually on the customary argument day. Whether a motion brought on by OSC is made returnable in the Motion Submission Part Courtroom (Room 130) or directly in the IAS Part, the movant is responsible for providing proof of service on the return date.

Once the OSC has been signed, the papers must be delivered to the General Clerk's Office for further processing to ensure that the OSC appears on the proper motion calendar for the return date just fixed.

During absences of Justices, OSC's are handled by Ex Parte Justices.

Sometimes a party must submit an OSC to a Justice outside of normal court hours. There is a procedure in place to address such applications. See Emergency Applications After Hours.

There are two problems that may arise from applications entertained by Justices outside of normal court hours. First, the existence of the application may never be recorded in the court computer. Second, parties may be concerned about the potential risk of judge-shopping. To avoid these problems, all such applications should be made returnable before the assigned Justice or, if there is none, in the Ex Parte Office for random assignment (not before the Justice who signs the OSC unless he or she is the already-assigned Justice). The papers should be delivered to Ex Parte as soon as possible after the application has been signed.

B. INFANT’S, INCOMPETENT’S AND WRONGFUL DEATH COMPROMISE ORDERS

Court approval is required when an action commenced by an infant or an incompetent or an action for wrongful death is settled. The approval will take the form of a compromise order. If an action is pending before the court (an RJI was obtained), the proposed order and accompanying affidavits should be submitted to the Ex Parte Office for review. Upon completion of the review, the Office will forward the papers to the Justice assigned to the case. If no action was commenced or an action was commenced but no RJI was filed, the papers should be submitted to the Ex Parte Office along with an RJI so that the matter may be assigned to a Justice.

C. OTHER EX PARTE APPLICATIONS AND RELATED APPLICATIONS ON NOTICE

Ex parte applications in addition to OSCs are filed in the Ex Parte Office, except in Commercial Division cases. Depending on their nature, these are either referred to an Ex Parte Justice or entered into the court’s computer and assigned to a Justice unless brought on in a previously-assigned action, in which event the application will be submitted to the assigned Justice. The following is a detailed summary of key ex parte applications processed by the Ex Parte Office and related applications on notice. (Applications for poor person status involving the unrepresented are handled by the Help Center (Room 116)). A no-fee RJI will be required now as to various ex parte applications for which none was required prior to April 2011. Trial Court Rule § 202.6 (b). When a no-fee RJI is required, the application will not be assigned to an IAS Justice.

Anonymous Caption Order and Sealing of File

This application should be sought by order to show cause containing a proposed TRO in which, pending a hearing on the motion, the applicant is accorded the right to obtain an index number and file an RJI using the Anonymous caption and access to the file is restricted. The proposed order to show cause, which will seek as its ultimate relief an anonymous caption and sealing of the file throughout the case, should be presented to the Ex Parte Office. Pleadings should not be filed with the County Clerk at the outset in the normal manner. The application will be referred to an Ex Parte Judge. If the TRO is approved, County Clerk staff should be immediately so advised so that the restriction can be carried out promptly; the anonymous caption will be recorded in the County Clerk's records, access to the file will be limited and the RJI will be processed and the motion will be referred to an IAS Justice for action. If sealing the file is not sought, the application to proceed under an Anonymous caption should be submitted as a proposed order to show cause containing a TRO that would allow the mater to proceed anonymously and an RJI to be filed pending the hearing on the application. The TRO would be referred to an Ex Parte Justice. If the TRO is signed, the County Clerk staff should be informed immediately. (If an anonymous caption is obtained, but the file is not sealed, the public might be able to obtain information from the file that identifies the parties, thereby defeating the purpose of the anonymous caption order.) A party may seek to seal a file upon commencement without a request for an anonymous caption. As to this, see Sealing of File at Commencement below.

Attachment, Ex Parte Orders

An order of attachment: 1) secures identified property against removal or dissipation to provide security for an eventual money judgment; or 2) provides a jurisdictional basis over the case premised upon the presence of property in New York. The class of cases in which such an order may be granted is listed in CPLR § 6201. The order may be granted ex parte, including before service of a summons. CPLR § 6211.

The papers must contain a statement complying with CPLR 2217 (b). The plaintiff must also state whether any other provisional remedy has been sought or obtained in the case against the same defendant. CPLR § 6001. If there is any possible doubt about the matter, the applicant must provide a detailed explanation of the jurisdictional nexus to New York. If the matter is brought pursuant to CPLR § 6201(1), the moving papers should contain either a certificate as to the foreign and unqualified status of any corporate defendant, or an affirmation of counsel reciting that he or she spoke by phone with a representative of the Secretary of State (or the Banking Department where a bank is involved) and learned that the defendant is neither a New York corporation nor qualified to do business here, or, if defendant is an individual, the source of knowledge that the defendant is a non-domiciliary residing without the state.

Further, the moving papers must show that the case is one within CPLR § 6201. The papers must contain evidentiary proof of the claims being asserted and that it is probable that the plaintiff will succeed on the merits, and that the amount demanded exceeds all counterclaims known to plaintiff. CPLR § 6212 (a); David D. Siegel, New York Practice § 316, at 504-05 (4th ed. 2005). The proposed order should be submitted and it must specify the amount to be secured by the order of attachment, including interest, costs and sheriff's fees and expenses. CPLR § 6212 (a).

The plaintiff must give an undertaking in an amount to be fixed by the court, but not less than $500 (CPLR 6212 (b)). See CPLR Art. 25. The sheriff will levy upon the amount in issue, plus 14%, plus $ 400, to cover interest, poundage fees, and levy fees. The undertaking should be 5 % of the above total for each defendant, plus 5 % for the sheriff (up to $ 50,000).

Where an order is obtained ex parte (except one based upon CPLR § 6201(1)), it must provide that the applicant, within five days after levy on the property, shall move on such notice as the court shall direct to confirm the attachment. CPLR 6211 (a). In a case in which the order is based on CPLR § 6201(1), a garnishee's statement must be served and the plaintiff shall move within ten days after levy to confirm the order. CPLR 6211 (a).

Attachment, by Motion on Notice

An order of attachment may be sought by motion on notice. CPLR 6210. An application seeking an order of attachment based on CPLR 6201(3) (intent to defraud creditors or frustrate enforcement of a judgment) is almost always made on notice. On a motion brought by order to show cause, the court may grant a TRO without notice prohibiting the transfer of assets by a garnishee (id.). The order of attachment must contain the provisions set out in CPLR § 6211(a).

On a motion on notice, the moving papers must satisfy CPLR § 6212(a) and provide for an undertaking for the TRO (CPLR 6212 (b)) (generally 5% of amount to be restrained). Professor Siegel states that, in regard to the application for a TRO in a motion on notice, an undertaking is discretionary. David D. Siegel, supra § 316 at 504.

Commission; Letters Rogatory

Where a deposition is sought of an out-of-state witness who may not or will not appear voluntarily, the parties may jointly agree to appoint an officer in the other state who would make an application to compel the testimony, or the deposing party must obtain from this court a commission which formally seeks cooperation of the court system of the other state. It is necessary since a court order from this state may have no force in another jurisdiction. David D. Siegel, § 360, at 589. A court in the other state should issue an order that will bind the witness and require his or her appearance. CPLR 3108. A commission to take testimony on oral questions is sometimes referred to as an "open commission" and one to take testimony on written questions as a "sealed commission."

If all parties to the New York action are in accord about the need for the deposition, they should sign a stipulation, in which event the deposing party may proceed ex parte. The deposing party should submit to the Ex Parte Office or Commercial Division Support Office a proposed order, a proposed commission, the stipulation, and a verified petition or in a pending case an affidavit/affirmation. The applicant should describe the nature of the action, the name and home or business address of the witness, and the nature of the testimony sought and why it is material and necessary. The papers should comply with CPLR 2217(b). If the parties do not agree, a motion on notice must be made, supported by the foregoing (exclusive of the stipulation).

The commission should be signed with the full signature of the Justice since it is intended to be operative in the other state and should be in a form to pass muster there without difficulty. If the court directs the County Clerk to issue the commission, the applying party would obtain the commission from the Clerk by presenting the signed order.

The letter rogatory is a similar device used to obtain testimony in a foreign country. There is no prescribed form for a letter rogatory. David D. Siegel, supra, at 590. A letter is granted on motion or stipulation. If the request is granted, an order is initialed by the court and, as with the commission, the letter is signed with a full signature. The court should not direct the County Clerk to issue and sign the letter as that may render the letter ineffective in a foreign jurisdiction expecting to see the signature of a judge on such a document.

Since letters rogatory involve foreign countries, the State Department of the United States has a vital role to play. The State Department makes very useful information about letters rogatory available on its website and attorneys are advised to consult this information. The address is: http://travel.state.gov/law/judicial/judicial_683.html.

The Uniform Interstate Depositions and Discovery Act (enacted in New York as CPLR 3119) may be in place in another state in which New York counsel seeks to take certain discovery. This would provide a simple and inexpensive method for obtaining such discovery.

Contempt (Civil)

Such a motion must of course be on notice. An order to show cause must contain the statutory warnings that the purpose of the hearing is to punish for contempt, punishment may include imprisonment, and failure to appear may result in arrest and imprisonment. Judiciary Law § 756. The moving papers must be served on the accused not less than 10 and no more than 30 days prior to the time set for the hearing. The application must comply with CPLR 2217(b) regarding prior, similar applications and state that the contemnor has impeded, impaired, prejudiced and defeated the rights of the applicant. In matrimonial cases, if the application is made with respect to an enforcement procedure under DRL § 245, there must also be a statement that payment cannot be enforced by sequestration (DRL § 243) or the giving of security, by enforcement of a judgment (DRL § 244), or by an income execution or income deduction order for support enforcement. CPLR §§ 5241 and 5242.

If a person is held in civil contempt after motion, a long form contempt order normally must be drafted and settled (this because of the need for important standardized language in such orders). The original order of contempt should contain certain provisions, such as language reciting that the rights of the applicant were impeded, impaired, prejudiced or defeated by the action of the contemnor. Additional provisions are required in matrimonial orders of contempt. It is recommended that Justices direct settlement of long form orders of contempt in the appropriate back offices (Motion Support and Commercial Division Support) rather than in the Part or in Chambers. The contempt order usually provides that if the contemnor fails to purge the contempt within a fixed period of time, the applicant may submit ex parte an order of commitment for the signature of the Justice, that is, an order directing the Sheriff to arrest the contemnor and bring him or her before the assigned Justice or an Ex Parte Justice. Given the seriousness of the order of commitment, it is suggested that Chambers have it, too, reviewed by the Ex Parte Office or Commercial Division Support Office. If the person appears and is held in contempt after a hearing, the contemnor may be committed without further process. Judiciary Law § 772. If the term of imprisonment is for an indeterminate period, the proceedings must be reviewed every 90 days before the court that imposed the imprisonment, unless the contemnor was discharged by law. Judiciary Law § 774(2).

When the ex parte order of commitment is reviewed by the staff of the Ex Parte Office or Commercial Division Support Office, the staff will requisition and review the file, focusing upon whether the contempt order was properly served and whether sufficient time was allowed the contemnor to purge the contempt. In general, it needs to be clear that a certified copy of the order of contempt was served personally upon the contemnor, that ten days were afforded the contemnor to pay a fine and appear for an EBT or take such other action to purge the contempt as the order may have required, etc.

Default and Inquest

Upon the default of a defendant, the plaintiff may seek a default money judgment or an inquest ex parte under some circumstances. The plaintiff may apply directly to the County Clerk for judgment if the sum is certain or can by calculation be made certain (CPLR § 3215(a)). The default must be taken within one year or the court, absent good cause, shall instead dismiss the complaint. CPLR § 3215 (c). The defendant who appeared in the case is entitled to notice, or, if more than one year has elapsed since the default, even if defendant has not appeared unless the court orders otherwise. The court may dispense with notice when a defendant who has appeared has failed to proceed to trial of an action called for trial. CPLR § 3215(g)(1). Where an application must be made to the court, a defendant who has failed to appear may serve a written demand for, and is then entitled to, notice of any reference or assessment by a jury. CPLR § 3215(g)(2). Additional notice is required when the default judgment based on nonappearance is sought against (i) a natural person in an action based on nonpayment of a contractual obligation, or (ii) a domestic or foreign corporation served pursuant to BCL § 306(b). CPLR § 3215(g)(3) and (4).

The moving papers must contain a copy of the summons with notice or summons and complaint with Clerk's filing stamp; a factual affidavit by the client supporting the claim or a complaint verified by the client; a detailed affidavit or affirmation as to the default and the amount due; proof of service with Clerk's stamp; and a statement in compliance with Section 2217(b) regarding prior, similar applications. CPLR 3215 (f).

If there are multiple defendants, the moving papers must account for all of them. If any has not been summoned, the plaintiff must provide for a severance and disposition with respect to that party (dismissal or discontinuance).

If a motion on notice for a default is granted, the order should provide, where possible, that the Clerk shall enter judgment in favor of plaintiff in the sum of $ X, plus interest [where applicable] from Y date at the proper rate, together with costs and disbursements. If an inquest is required, the order should provide for severance or discontinuance of other parties and direct the Clerk to assign the action for an inquest and assessment of damages. This directive should require that plaintiff serve a copy of the order on the General Clerk's Office and file a Request for Judicial Intervention (if no Justice has been assigned previously) with a note of issue and pay the proper fees. The statement of readiness is waived.

In a foreclosure matter, the order should provide, in addition to the foregoing, for deleting John Doe defendants and amending the caption and should direct an inquest or appoint a referee to compute the amounts due plaintiff on its note and mortgage. It should direct the judicial officer or referee on inquest to report whether the mortgaged premises can be sold in one parcel. The order should provide for the entry of a judgment of foreclosure and sale. The judgment will award the referee fees not to exceed $500 and may provide for an inquest to determine counsel fees.

Discharge of Ancient Mortgage Presumed Paid

As to an ancient mortgage on real estate (one that has not been discharged of record within 20 years after the debt was due) and is presumed from the passage of time to have been paid, the mortgagor, heirs thereof, or any person having an interest in the property may apply to have the mortgage discharged of record by presenting a verified petition seeking an order to show cause and supported by an official search. RPAPL 1931 (1).

The verified petition shall describe the mortgage, and when and where it was recorded, and shall allege that the mortgage has been paid; that the mortgagee(s) has or have been dead for more than five years; address assignments if that occurred or where the mortgagee is a corporation or association showing that same has ceased to exist for more than five years; the time and place of death and residence; whether or not letters testamentary or of administration have been taken out; and the names and locations of heirs. If the mortgage was recorded or adjudged to have been paid more than 50 years before, the petition, if necessary, may set forth the best knowledge and information of the petitioner in regard thereto and show reasonable effort to ascertain the facts. RPAPL 1931 (2). The papers should comply with CPLR 2217 (b).

The supporting search shall be by the recording officer, the Register of the City of New York, a New York attorney, or a title company duly incorporated and authorized to transact business in this state showing assignments of record, if any. RPAPL 1931 (1).

The petition shall be presented to the Supreme Court of New York County if the mortgaged premises are located therein.

Upon submission of a petition in compliance with Section 1931 (2), the court shall issue an order to show cause. The order to show cause shall set forth the names of the mortgagor, mortgagee/assignee, the date of the mortgage and where recorded, and the location of the property. The order shall be published in such newspaper(s) and for such time as the court shall direct and the court may also direct personal service upon persons it designates. RPAPL 1931 (4).

Discharge of Mortgage After Payment

After payment of amounts due under a mortgage, the mortgagee of New York real property shall execute and acknowledge a satisfaction of mortgage and present same for recording. Failure to do so shall render the mortgagee liable for certain charges. RPAPL 1921 (1). In the event of a failure or refusal of the mortgagee to comply, any person having an interest in the mortgage or the debt or obligation secured thereby or in the premises may apply to the Supreme Court in the county where the premises are located by verified petition seeking an order to show cause why an order should not be made canceling and discharging the mortgage of record. The grounds for the application must be set forth in the petition. RPAPL 1921 (2).

Discharge of Mechanic's Lien Upon Posting an Undertaking

A mechanic’s lien may be discharged upon posting of an adequate undertaking. Lien Law §§ 19(4) and 21(5).

1) Lien on Private Property

Generally, fixing the amount of the undertaking is no longer required. A lien for labor performed or materials furnished for a private improvement may be discharged by the owner or contractor executing a bond or undertaking by any fidelity or surety company authorized to transact business in New York in an amount equal to 110% of the lien. Lien Law § 19(4). The bond or undertaking is to be filed with the County Clerk and a copy served on the adverse party. The undertaking is effective when served and filed. Lien Law § 19(4)(a).

For bonds or undertakings not executed as set forth above, the owner or contractor must execute an undertaking with two or more sufficient sureties, who must be freeholders, to the County Clerk. Lien Law § 19(4)(b). The sureties must together justify in at least double the sum named in the undertaking. Lien Law § 19(4)(b). An application must then be made to the court to approve the undertaking. Notice of an application to approve an undertaking must be given to the lienor along with a full set of papers. See Lien Law § 19 (4). Service shall be made at least five business days prior to the return date or ten days if service is by mail. Proof of service shall accompany the application.

2) Lien on Public Improvement

Procedures similar, but not identical, to those outlined above shall be followed with respect to liens on public improvements. Lien Law § 21 (5).

Where a contractor has a credit with the state or a public corporation for a sum by reason of an estimate due and payable, and where payment thereof is withheld because a notice of lien has been filed against the contractor’s interest in that money, if the money is greater than the sum claimed in the notice, the contractor may apply to the Supreme Court with at least five days' notice for an order discharging the lien and directing retention of a sum not less than the amount claimed by the lienor, with interest and such additional amount as the Justice deems sufficient, and payment of the balance immediately to the contractor. Lien Law § 21 (6). See also Lien Law § 21(6-a).

Examination Inside New York -- Foreign Action

CPLR 3102 (e) governs the procedure for obtaining a deposition of a witness located in New York for use in an action pending in another jurisdiction. Chapter 29 of the Laws of 2010, effective on January 1, 2011, introduced CPLR 3119 which provides a simple mechanism by which a party to an action pending in another state of the United States, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, or U.S. territory or insular possession may obtain a deposition of a New York witness. CPLR 3102 (e) applies to depositions to be used in actions pending in other states and in foreign countries.

1) CPLR 3119 (Uniform Interstate Depositions and Discovery Act)

CPLR 3119 allows a party to an out-of-state action to obtain a deposition of a New York witness, the production, inspection and copying of designated records, or inspection of premises by submitting an out-of-state subpoena to the County Clerk of the county in which discovery is sought to be conducted. The Clerk will issue a New York subpoena for service on the witness.

To obtain a subpoena from the New York County Clerk, counsel should submit the proposed subpoena and the out-of-state subpoena to the County Clerk’s Judgment Clerk in Room 141B in the basement at 60 Centre Street. There is no fee to obtain this subpoena.

If a party to the out-of-state action retains a New York attorney and that attorney receives the original or a true copy of an out-of-state subpoena, the attorney may issue a subpoena under this section.

In the event that issues or objections arise regarding a subpoena issued under CPLR 3119, an application may be made to the court for a protective order or for an order enforcing, quashing, or modifying the subpoena. CPLR 3119 (e). Where the discovery is to be conducted in New York County, the application for an order may be made to the New York County Supreme Court. Such an application shall be made as a special proceeding using a caption appropriate thereto, e.g., “In the Matter of the Application of X to Enforce a Subpoena for the Testimony of Y.” A proposed order to show cause supported by a petition or an affidavit or affirmation reciting the facts, attaching a copy of the New York subpoena and the out-of-state subpoena, shall be presented to the Ex Parte Office (Room 315). The application shall be made by a New York attorney with a New York address.

2. CPLR 3102 (e)

In response to a commission, letters rogatory or order from another state, a deposition may be taken of a witness in New York, or documents produced from such a witness, and an order of this court may be obtained to ensure this result. CPLR § 3102(e). The order may be sought by ex parte application, requiring the purchase of an index number and the filing of a no-fee RJI (the application will not be assigned to an IAS Justice). However, scholars state that there appears to be a conflict as to whether the application has to be on notice (David D. Siegel, supra, § 352, at 574), and that, though an ex parte application is authorized, the court may, and normally should, require notice to the witness and all parties to the case (6 Jack B. Weinstein, Harold Korn & Arthur Miller, New York Civil Practice 3102.24, at 31-222 (2d ed. 2009)). The application must be made by an attorney admitted to practice in New York who has a New York address. The petition for this relief should not use the caption from the underlying case, but rather a caption in the form used in a special proceeding (e.g., "In the Matter of the Application of Washington, Jefferson & Lincoln, P.C., Attorneys at Law, Petitioners, to Take the Deposition on Oral Questions of John Smith, Respondent"). If the application is made on notice, it should take the form of a special proceeding. The petition should be supported by an affidavit of New York counsel, a copy of the foreign commission or other process, a proposed order, and a New York subpoena to be served with a copy of the signed order. If a notice of deposition was previously served, a copy should be included. The signing requirement of Section 130-1.1-a of Part 130 must be satisfied. The attorney’s affidavit must state that it is by a New York attorney with a New York address; set forth a basis for the application, including the nature of the action, the name and home or business address of the witness, the nature of the testimony sought and its materiality and necessity; address CPLR 2217(b); and set forth any other information required by any special circumstances. Video taping is allowed only if the commission specifically provides for it. See Trial Court Rule § 202.15. The order should provide for a place, date and time for the examination or for the production of documents and authorize a subpoena or subpoena duces tecum to be served on the witness. The subpoena must be served together with a copy of the order at least 20 days prior to the examination unless the court orders otherwise. CPLR 3106(b). If medical records are sought from a medical provider, the movant must comply with CPLR 3122(a).

Examination Outside the State -- New York Action
See Commission; Letters Rogatory

Extension of Time

Pursuant to CPLR § 2004, the court may extend time periods (not statutory periods of limitation). If the time has not yet expired, the motion may be made ex parte. If the time has expired, the motion should be made on notice, and interim relief may be requested. The court has the power to extend the deadline for effecting service of process. CPLR § 306-b.

The moving papers should include a copy of the summons and complaint and an affirmation/affidavit explaining that the case is not one pursuant to CPLR § 3213 and setting forth the pertinent facts about the deadline in question. The papers should make clear whether any previous extensions were granted by stipulation or order and whether any effort was made to obtain an extension on consent. CPLR 2217(b) must be complied with as to prior, similar applications.

False Claims Act Cases

The procedure to initiate a matter brought under the False Claims Act (qui tam cases) is as follows. The filer should file under an anonymous caption a summons with notice and an unsigned order, described below, with supporting affidavit with James Rossetti, Chief Deputy County Clerk (Room 161 at 60 Centre Street), or Joseph Antonelli, Clerk in Charge of Law and Equity in the County Clerk’s Office (Room 141 B at 60 Centre Street). The filer should be sure to alert Mr. Rossetti or Mr. Antonelli that the case is a False Claims matter. Mr. Rossetti or Mr. Antonelli will hold the papers on the side pending receipt of the original, signed order. The filer should obtain an index number and file a Request for Judicial Intervention.

The filer should then submit the following on separate blue backs to the Ex Parte Office (Room 315, 60 Centre Street): (i) the proposed order, the affidavit in support, and the RJI with proof of payment; and (ii) the complaint with a copy of the summons with notice. The proposed order would provide that the County Clerk issue an index number under an anonymous caption; that the County Clerk seal the file until further order of the court; that the complaint be filed in camera under seal; and that service of a copy of the order and any written disclosure of substantially all material evidence and information in the plaintiff’s possession be made on the Attorney General by a date fixed. The affidavit should set forth facts as to why the plaintiff is proceeding anonymously. Further, the order should provide that the State furnish to the court under seal an ex parte report on the status of its investigation of the matters involved within six months of the date of entry of the order and at six month intervals thereafter until the court orders that the seal be lifted and the State’s time to make an election be terminated; and that the County Clerk not enter any document in any electronic filing system. The true names of the parties would only be identified in the complaint; the proposed order would bear an anonymous caption. The Ex Parte Clerk will process the order and transmit it to the Justice assigned for consideration and signature.

If the order is signed, the Ex Parte Clerk will pick it up from the Justice and file it with the County Clerk in Room 141 B, who will seal the file and record the case under an anonymous caption if the order so provides. The complaint will remain in camera in the Justice’s Chambers under seal.

The Ex Parte Clerk will make a copy of the signed order and notify the moving attorney to arrange for pick-up or faxing. The attorney must then serve the Attorney General in accordance with the order.

Foreclosure

During the summer of 2008, the Legislature responded to the subprime mortgage crisis by enacting, inter alia, RPAPL § 1304 and CPLR 3408. As originally enacted, RPAPL § 1304 required mortgage loan servicers to send homeowners with “subprime,” “non-traditional,” or “high-cost” home loans (as defined by statute) a notice at least 90 days prior to the commencement of a foreclosure action. A 2009 amendment to this statute requires the notice to be sent prior to the commencement of a foreclosure action involving any home loan as defined in RPAPL § 1304(5). The language of the notice is set forth in the statute. The notices must be sent to the last known address of the borrower by registered or certified mail, in addition to first-class mail. Since RPAPL § 1304 is titled “Required prior notices” as opposed to “Required notices” of RPAPL § 1303 (see below), the borrower is clearly entitled to raise the failure to serve the notice as a defense to the foreclosure action.

CPLR 3408 originally provided for mandatory settlement conferences in residential foreclosure cases commenced after September 1, 2008, and involving subprime, high-cost, or non-traditional loans taken out between January 1, 2003 and September 1, 2008 on property in which defendant is a resident. The rule also allowed homeowners in pre-September 1, 2008 foreclosure actions involving these types of loans to request settlement conferences prior to the issuance of a judgment of foreclosure. The 2009 amendments have expanded the types of cases that qualify for both the mandatory and the voluntary settlement conferences.

In addition to the foregoing, settlement conferences are now mandatory in any residential foreclosure action filed after February 16, 2010, and involving a home loan as defined in RPAPL § 1304. Settlement conferences may also be requested by homeowners in any pre-February 16, 2010 action to foreclose on a home loan on property in which defendant is a resident and in which no judgment has been issued.

A mandatory conference must be held within sixty days after proof of service is filed with the County Clerk, or on such adjourned date as has been agreed to by the parties. A voluntary conference is to be held as soon as practicable. The settlement discussions are to pertain to the relative rights and obligations of the parties under the mortgage loan documents, including, but not limited to, determining whether the parties can reach a mutually agreeable resolution to help the defendant avoid losing his or her home, and evaluating the potential for a resolution in which payment schedules or amounts may be modified or other workout options may be agreed to, and for whatever other purposes the court deems appropriate. CPLR 3408 (a).

If the settlement conference process ends without a resolution, the foreclosure action continues. Applications in foreclosure actions may be made ex parte when all defendants have either defaulted or filed notices of appearance and waivers of service of further papers. In other instances, applications must be on notice.

Where a lender is making its first application to the court in any residential foreclosure action commenced prior to September 1, 2008, the lender should identify in its supporting papers whether the loan is sub-prime or high-cost (see Laws 2009, Ch. 507, § 10). The purpose of this identification is to allow the court to notify the homeowner that he or she may request a settlement conference.

All applications should recite whether there has been a settlement conference and, if not, state why the loan is exempt from the conference process.

1) Application to Appoint Referee

The process of seeking to foreclose a mortgage on real property may begin with an ex parte  application to appoint a referee to compute the sum due the plaintiff. The applicant must submit an affirmation/affidavit that recites that a notice of pendency was filed and when that was done; that the required prior notice complying with the language set forth in RPAPL § 1304 was properly served on the borrower(s); that the time for the defendants to appear, answer or move has expired and that no defendant has appeared or answered (except for those who have made limited appearances); and, if that is the case, that the defendants or some of them have admitted the plaintiff's right to foreclose.  The applicant should annex to the affirmation/affidavit a copy of the summons and complaint, proof of service, notice of appearance, and a copy of the mortgage and the note.

The RPAPL was amended, effective February 1, 2007, to require that a form notice titled “Help for Homeowners in Foreclosure” be delivered with the summons and complaint commencing any foreclosure action for owner-occupied one-to-four-family dwellings. RPAPL § 1303. There is authority, though not on the Appellate Division level, holding that the failure to serve the notice with the summons and complaint is ground for denying an application for the appointment of a referee to compute [Countrywide Home Loans, Inc. v Taylor, 17 Misc. 3d 595 (Sup. Ct. Suffolk Co. 2007)].

The moving papers should include a proposed order of reference. The designated referee must be an appointee whose name is taken from the approved fiduciary list or who has superior qualifications (see Section 36.1 (a) of Part 36 of the Rules of the Chief Judge). (The procedures set forth in Section 36.4 do not apply to a referee to compute or a referee to sell whose compensation is anticipated to be $ 750 or less. Section 36.4(d). Re compensation upon a sale of real property, see CPLR 8003(b).) The order should direct the referee to compute the amount due and determine whether the premises can be sold in a single parcel. RPAPL § 1321. An ex parte application of this sort must be accompanied by the filing of an RJI (unless for some reason the matter had already been assigned, e.g., on a motion for the appointment of a receiver).

2) Motion to Confirm

The report of the referee is normally prepared by the plaintiff's counsel. It must recite the work of the referee (usually including a schedule of the documents examined and relied upon by the referee) and set forth findings of fact and conclusions of law regarding the issues referred, chiefly, the amounts of principal and interest and sums otherwise due. If testimony was taken, the transcript must be annexed to the report unless the parties stipulate to dispense with it. If the referee was appointed by ex parte order in a default situation as explained above, the application to confirm may proceed ex parte as well. In such an instance, the application will include a request for the entry of a judgment of foreclosure and sale, as explained in Item 5 below.

3) Motion to Appoint Receiver

A receiver may be appointed without notice if the mortgage contains a receivership clause. RPL § 254. The plaintiff need not show that the property is inadequate security if the mortgage contains such a clause. Such a showing is dispensed with where the mortgage authorizes the appointment of a receiver of the rents and profits and provides that, upon default, rents and profits are assigned or pledged as added security.

The papers in support of the application must include an affidavit or affirmation that states the amount of the monthly rent roll and annexes a copy of the summons and complaint, the mortgage, note, or a lien and tax certificate. There must also be proof of service, a proposed order for appointment of a receiver, and a Request for Judicial Intervention (if there has not been one already). The court will appoint the receiver, who must be a person on the official fiduciary list or one with better qualifications, and there must be compliance with Parts 26 and 36 of the Rules of the Chief Judge. A bank must be designated by the court to serve as depository for the receiver's accounts.

A receiver must qualify before exercising power. This requires filing an oath and posting an undertaking. CPLR §§ 6402-03. The court order shall specify the amount of the undertaking. As to powers, duties, and responsibilities, see CPLR § 5228, RPAPL § 1325 and GOL § 9-101. See also CPLR 6401(b).

The receiver is entitled to a commission as fixed by the court in an amount not exceeding 5 % of amounts received and disbursed. CPLR § 8004(a).

4) Termination of Receivership

The plaintiff may apply ex parte to terminate a receivership. The application must be supported by an affidavit/affirmation justifying the request, the consent of the receiver, and a proposed order, together with compliance with CPLR 2217(b) regarding prior, similar applications. The proposed order should provide that the receivership be terminated, contain a direction that the receiver surrender the premises to the owner, and direct the receiver to settle an account with all appropriate speed or within a fixed deadline.

5) Judgment of Foreclosure

The order and judgment of foreclosure usually is submitted with the ex parte application to confirm the report of the referee to compute. The papers must establish default or consent to the foreclosure.  Generally, the applicant should submit a supplemental affidavit or affirmation of regularity, a copy of the referee's oath and report, a copy of the mortgage, note and assignment, a copy of the notice of pendency, and a copy of the summons and complaint.

The proposed order and judgment should be submitted with the papers. It should contain a direction that the premises be sold in the manner set forth in the referee's report and should specify clearly the amount of the plaintiff's lien with interest, costs and extra allowances (CPLR Art. 83). A blank line for costs and disbursements may be left for completion by the Clerk. The order and judgment should clearly identify the property and the mortgagor's interest that is to be sold (fee, etc.) and any superior interests that limit the estate being sold.

The order and judgment appoints a referee to sell, who usually is the referee to compute. If a new person is appointed, there must be compliance with CPLR 4312 and Parts 26 and 36 of the Rules of the Chief Judge. The order and judgment will specify the referee's fee, the place and time of the sale, and where notice will be published. See CPLR § 8003(b).

If an answer was served, the plaintiff will have to proceed by motion on notice for summary judgment and the appointment of a referee to compute. This motion is processed through the General Clerk's Office (Room 119).

Infant’s Compromise Order

Settlement of an action commenced by or on behalf of an infant or a claim thereof requires court approval. CPLR 1207 (applicable also to actions or claims of incapacitated persons). See also Uniform Rule 202.67.

1) Procedure Generally

Where an action has been commenced by or on behalf of an infant, a motion shall be made by the guardian ad litem of the infant or one of the other persons defined in Section 1207 seeking judicial approval of a settlement of the action. The motion shall be made before the Justice who presided over the compromise. Uniform Rule 202.67 (e). If no action has been brought, the vehicle by which a settlement of a claim may be approved is by commencement by such a representative of a special proceeding in any court in which an action for the amount of the proposed settlement could have been commenced. Notice of the motion or petition shall be given as directed by the court, meaning that the application shall be brought on by order to show cause (David D. Siegel, New York Practice § 200 (5th ed. 2013)). An order on such a motion shall have the effect of a judgment. The order, or the judgment in a special proceeding, shall be entered without costs and shall approve the fee for the infant’s attorney. Id.

The papers to be submitted are, in addition to the proposed OSC, the following: a verified petition or an affidavit of the guardian ad litem, etc. depending upon whether an action has been commenced; a proposed form of court order or judgment approving the settlement, which shall bear the index number and a legal back; the acknowledged consent of the infant if he/she is 14 or older; an affidavit of the attorney of record (if made by trial counsel, an affidavit of consent to the settlement will also have to be attached by the attorney of record); and an up-to-date affidavit or report of a physician and a copy of the prior medical and hospital summary sheet.

2) Contents of Supporting Affidavit or Petition

The following information shall be included in the petition or affidavit of the guardian or other representative of the infant (see CPLR 1208 (a)):

1) The name of the guardian, address, and relationship to the infant;

2) Name, age, date of birth, and residence of the infant;

3) The circumstances that gave rise to the action or claim;

4) Nature and extent of the damages suffered by the infant;

5) Length of hospitalization, if applicable;

6) Name of each physician who attended or treated the child or who was consulted;

7) Period of disability;

8) Amounts of the bills of each hospital and doctor, noting those that have been paid, explaining how they were paid and whether reimbursements have been received from any source, stating the amount remaining unpaid for each, and noting whether any liens are outstanding;

9) Request for payment of any hospital or doctor’s bills that are to be paid directly from the proceeds of the settlement (a provision to this effect should be included in the order or judgment);

10) Waiver of any claim for loss of services;

11) If the guardian has paid medical or hospital expenses on behalf of the infant without reimbursement from any source and wishes to receive such reimbursement from the proceeds of the settlement, a request therefor should be made (and a provision to this effect should be included in the order/judgment);

12) Information on the present physical condition of the infant;

13) The terms of the retainer agreement with the attorney;

14) The terms of the proposed settlement and distribution;

15) Whether the infant’s representative or any member of his/her family has made a claim for damages alleged to have been suffered as a result of the same occurrence giving rise to the infant’s claim and, if so, the amount paid or to be paid in settlement or, if not settled, the reasons therefor; and

16) Whether there has been any previous application for the same relief (CPLR 2217 (b)).

3) Contents of Affidavit of Counsel

The following information shall be included in the affidavit of the attorney (see CPLR 1208 (b)):

1) Nature of the retention (by whom retained, date, terms, that the requirements for filing a retainer statement with the Office of Court Administration have been carried out and the code number thereof, or showing that such requirements do not apply);

2) The acts complained of;

3) The terms of the proposed settlement and the reasons for recommending it;

4) The services rendered, the fee requested, and itemized disbursements; and

5) That the attorney has not become involved in the settlement directly or indirectly at the instance of an opposing person or party or with adverse interests and that the attorney has not received and will not receive any compensation from such party, and whether or not the attorney has represented or now represents any other person asserting a claim arising from the same occurrence.

4) Contents of Affidavit or Report of Physician

The following information shall be included in the affidavit or report of the physician (see CPLR 1208 (c)):

1) The physician’s connection with the case or claim;

2) The nature, extent, and duration of the injuries and the period of treatment;

3) Date of the last examination (must be recent) and the physical condition of the infant then;

4) Permanency of the injuries (scars, restricted motion, etc.) and whether a full recovery has been made or, if not, details concerning the recovery;

5) Cost of the treatment or examination and whether the physician has been paid and, if so, by whom.

If the affidavit as to the infant’s present condition is not made by the attending physician, the affidavit of the latter shall be submitted stating the character of the injuries and the treatment.

5) Hearing

At the hearing on the motion or petition, the applicant, the infant, and counsel for the infant shall attend unless attendance is excused for good cause. CPLR 1208 (d).

Rule 12 of the Uniform Rules of the Justices (accessible on the court’s website at www.nycourts.gov/supctmanh) states that any proposed infant’s compromise (or other proposed settlement governed by CPLR 1207) shall be considered by the court “at an appearance in court on the record.” Five days prior to the scheduled conference, a Notice of Conference on Proposed Infant’s Compromise shall be served on all parties. A copy of the proposed order/judgment shall be annexed to this Notice unless previously served. Proof of service of such Notice shall be submitted at the conference.

6) The Order/Judgment

CPLR 1206 addresses disposition of the proceeds of a claim of an infant (or incapacitated person). See also Uniform Rule 202.67 (c). This section provides that any balance after deducting expenses allowed by the court shall be distributed to the guardian to be held for the use and benefit of the infant, including, where the court so directs, as set forth in CPLR 1210 (d). The court may order that money be deposited in one or more banks or other institutions or that a structured settlement agreement be executed. See CPLR 1206 (c). The court may direct that the money be deposited in a high interest yield account or invested in insured or guaranteed US treasury or municipal bills, notes, or bonds. Id.

This money is subject to withdrawal only upon further order of the court (with the exception of cases involving infants aged 18 or over). See CPLR 1206 (c).

Infant’s Funds, Partial Withdrawal

Where there has been a compromise of a claim of an infant, from time to time the guardian may need to withdraw part of the settlement funds to cover expenses of the infant. The guardian may apply to the court for an order approving such withdrawal. Where the parents are financially able to support the infant and to provide for the infant’s necessaries, treatment, and education, no authorization to withdraw such funds will be granted except in unusual circumstances. Uniform Rule 202.67 (g).

An application may also be made where the infant has other property.

The guardian should proceed by a verified petition. CPLR 1211 (a). The application should be made by order to show cause, on such notice as the court shall direct. CPLR 1211 (b).

The petition should identify the infant, including age and date of birth, and provide the address of the infant; and state the amount received in settlement (the balance of the recovery) and date thereof, the amount deposited, the nature of the deposit, and the date of the deposit and bank in which it was made, and attach a copy of the infant’s compromise order; the nature of the infant’s injuries and present condition; the amount now on deposit as shown on the most recent statement, the income from such property or any other source and whether there is any claim against the infant; the dates and amounts of prior withdrawals; the amount proposed to be withdrawn now and a full explanation of the purpose thereof, attaching bills, etc.; a sworn statement of the reasonable cost of the proposed expenditure; whether the parents are living and, if either is, all circumstances relative to their ability to support the infant, and if neither is living, the names of other persons legally obligated to support the infant and the circumstances relative to their ability to support the infant; the number of persons in the family, the monthly rent, the occupations of the parents and earnings; the ages of the children and occupations and income, if any; whether the family has real property and any income therefrom; the amounts of family money on deposit in any financial institution; a statement that the family is financially unable to afford the expenditures proposed; the terms of any previous order for similar relief made by a court in or outside New York; a CPLR 2217 (b) statement; and any other facts material to the application. If the infant is 14 or over, a notarized consent of the infant should be attached. A proposed order should be submitted.

Letter Rogatory: See Commission; Letters Rogatory.

Mechanic's Lien, Discharge of: See Discharge of Mechanic's Lien.

Mechanic’s Liens, Extension

In the case of a lien on private property, the lien shall not be for longer than one year after the notice of lien has been filed unless within that time an action is commenced to foreclose the lien and a notice of pendency is filed or unless an extension of the lien is filed with the County Clerk of the county in which the notice of lien is filed within one year from the filing of the original notice continuing the lien and the lien shall be re-docketed. If an action to foreclose is not commenced within the extended period, the lien shall be extinguished unless a court order is issued continuing the lien. A lien cannot be continued by court order for more than one year from the granting thereof, but a new order may be made in each of two successive years. Lien Law 17. An application for an order extending the lien may be sought ex parte. The matter should be captioned as “In the Matter of the Application of Lienor for the Continuation of a Mechanic’s Lien Claimed by and On Behalf of X, Lienor v. Y, Owner, and Z, Contractor.” The applicant shall submit an affidavit reciting the facts and attaching a copy of the lien in question.

Notice of Pendency

A notice of pendency may be filed in any action in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property (excluding a summary proceeding to recover possession of real property). CPLR 6501. The notice is filed in the office of the New York County Clerk for property situated in New York County. It may be filed before or after service of the summons and prior to judgment. Unless the complaint has already been filed, it shall be filed with the notice. CPLR 6511 (a). If the notice is filed before the summons has been served, the summons must be served within 30 days after the filing or the notice will be ineffective. CPLR 6512. The effect of this rule is to abbreviate the 120-day period that would otherwise apply. David D. Siegel, New York Practice § 335, at 536 (4th ed. 2005)

The notice of pendency is effective for three years from the date of filing. It may be extended by court order issued prior to expiration of the three years or any extension. The plaintiff shall move by order to show cause for an extension. An extension order shall be filed, recorded and indexed before expiration of the prior period (CPLR 6513) so that there is no gap in constructive notice.

The court shall or may issue an order cancelling a notice of pendency under the circumstances set forth in CPLR 6514 (a)(mandatory) or (b)(discretionary). Though not listed in this section, a clearly valid reason for seeking to cancel the notice is that the action is not a proper one for use of the device under CPLR 6501. David D. Siegel, at 537. The order shall or may be issued upon motion of any party aggrieved, which shall be brought on by order to show cause. The order canceling a notice may direct the plaintiff to pay the costs and expenses occasioned by the filing and cancellation, as well as costs of the action. CPLR 6514 (c). Section 6515 addresses undertakings in connection with an application to cancel a notice.

Pro Hac Vice Applications

May be made to the IAS Justice on notice or ex parte. See Section 520.11 of the Rules of the Court of Appeals and Section 602.2(a) of the Rules of the Appellate Division, First Department. The applicant must submit an affirmation describing admission to the bar of some state, the length of time in practice, the location and nature of the practice and stating that the applicant has not been disciplined in another jurisdiction. The applicant must indicate who from the New York bar will be associated in the prosecution or defense of the matter in question. An affirmation of New York counsel must be submitted stating the purpose of the admission and compliance with CPLR 2217(b) regarding prior, similar applications. A proposed order must be submitted that sets forth the purpose of the admission. The application must include a stipulation or consent, or be made on notice.

Sealing of File at Commencement

A plaintiff may wish to seal a file upon commencement, sometimes under an anonymous caption but at other times not. As to the former, see Anonymous Caption Order and Sealing of File. As to the latter, complaints and other commencement documents are made available to the press on the day of filing. To avoid such public access, plaintiff’s counsel should, before filing, contact the Chief Deputy County Clerk or the Clerk-in-Charge of Law and Equity in the County Clerk’s Office (Room 141B). The one or the other will retain the complaint for a period sufficient to allow counsel to present an order to show cause seeking a sealing order pursuant to Part 216 of the Uniform Rules and a TRO restricting access to the file pending the hearing. The County Clerk will await the outcome before making the pleading publicly available. Counsel should immediately inform the County Clerk of the outcome of the application for a TRO.

Security for Costs

May be made ex parte (for-fee RJI required). CPLR 8501 (a). The affirmation/affidavit in support must state that the plaintiff has not been granted permission to proceed as a poor person and is not a petitioner in a habeas corpus proceeding; that the plaintiff is not a domestic or foreign corporation authorized in this state; that plaintiff is not a resident of this state; and that CPLR 8501(b) does not apply (a fiduciary is not in place). The papers must include proof of the plaintiff's non-residency, which may consist of a copy of the summons, proof from the Secretary of State where a corporation is involved, and the like. There should be compliance with CPLR 2217(b).

The defendant should move on notice to the plaintiff if the amount of security requested is in excess of $ 500 or if the case is listed in CPLR § 8501(b). The papers should include a for-fee Request for Judicial Intervention if the case has not previously been assigned and a proposed order which should fix the amount of an undertaking, provide a deadline (30 days) for its posting, stay the proceeding as set forth in CPLR § 8502, and provide for service on plaintiff within 10 days.

Seizure, Order of

To obtain an order to seize a chattel, the applicant must submit an affidavit setting forth facts showing that the plaintiff is entitled to possession and that the other requirements of CPLR 7102(c) are met. An order to seize a chattel may not be made ex parte except where, in addition to the basic prerequisites for such an order, the court finds that, unless such an order is granted without notice, it is probable that the chattel will be transferred, concealed, disposed of, or removed from the state, or will become substantially impaired in value. CPLR § 7102(d)(3). A detailed affidavit of facts justifying the extraordinary ex parte nature of the relief sought is required (CPLR § 7102 (c)(7)), as is, of course, a statement satisfying CPLR 2217(b) regarding prior, similar applications. An order granted ex parte must provide that the plaintiff will move to confirm the seizure on such notice as the court shall direct within no more than five days after seizure. CPLR § 7102(d)(4).

An application for an order of seizure must be supported by an affidavit and an undertaking by which the surety shall be bound in a specified amount that shall be not less than twice the value of the chattel. See CPLR § 7102(c),(d),(e).

A TRO may be obtained on a motion brought on by OSC preventing the chattel from being removed, sold, assigned, or otherwise encumbered or disposed of. CPLR § 7102(d)(2).

Settlement of Action Brought By or on Behalf of an Incapacitated Person or Claim Thereof

See Infant’s Compromise Order above.

Substituted Service (CPLR § 308(5))

A plaintiff may move ex parte for leave to serve a defendant in such manner as the court directs. This relief may be obtained only if service under subdivisions 1, 2 and 4 of CPLR § 308 is impracticable. Courts have broad discretion in ordering methods of service under CPLR § 308 (5) provided that they are reasonably calculated to provide notice.

The method of service proposed by the plaintiff need not be adopted and should not be if it is not reasonably calculated to provide notice. The affidavit in support must show that there is a reasonable chance that the defendant will receive notice of the action. Otherwise, service by publication may be necessary.

The papers required on an application of this sort consist of a copy of the summons with notice or summons and complaint, an affidavit/affirmation of past efforts to serve and why alternative service is required, proof of the last known address of the defendant, a proposed order, and compliance with CPLR 2217 (b) regarding prior, similar applications.

Substituted Service -- By Publication

A plaintiff may obtain an order ex parte for publication under certain circumstances. CPLR 316. The plaintiff must submit an affirmation/affidavit in support, an affidavit of due diligence by a process server, exhibits demonstrating the results of a search for defendant (Internet, Post Office, Surrogate's Court, Board of Elections, Department of Motor Vehicles, military (in the five branches)), notice of publication (see Rule 316 (a)), a summons and complaint or summons with notice, a proposed order in compliance with Rule 316, and a Request for Judicial Intervention.

Withdrawal of Funds -- Commissioner of Finance

In connection with certain proceedings in this court, funds are sometimes deposited with the Commissioner of Finance pursuant to court order. Funds deposited with the County Clerk are promptly transferred to the Commissioner of Finance. An application for release of these funds can be made ex parte if the consent of all persons who have appeared in the action is submitted as part of the application. Otherwise, the applicant should move on notice to all parties.

The applicant should obtain from the Commissioner of Finance proof of the deposit, which is called a Certificate of Deposit. In a pending action an application can be submitted or else the claimant must execute and present a verified, duly acknowledged petition setting forth the facts that substantiate the claim to the funds in question. The petition must be sworn to before a notary public and a copy of the Certificate of Deposit, the application therefor, and the receipt issued by the County Clerk when the funds were originally deposited must be submitted. The claimant must present a proposed order reciting the material submitted and containing a directive to the Commissioner of Finance of the City of New York to pay the claimant, upon service of a certified copy of the order, the sum shown on the Certificate of Deposit, plus accrued interest, less lawful fees. A certified copy of the order may be obtained after filing in the Office of the County Clerk (cost $ 8.00, payable by check to the County Clerk). This copy should be served on the Commissioner of Finance.

 

September 2013