Articles: Divorce and Matrimonial Law

Motions in New York Actions
Order to Show Cause & Notice of Motion Explained

By J. Douglas Barics
August 2019

1. What is a Motion in New York Court proceedings?

A motion is a formal a request for the Court to issue an order separate from the main judgment. The statutory basis for motions is found in CPLR 2214, which sets out how motions are made. A motion does not exist outside of an underlying case, each motion must relate to the case in which it is made. Put another way, a motion is a mini case within a main case whose purpose is somehow necessary to the main case.

With very few exceptions, all motions must give the non moving side a meaningful chance to be heard. Failure to do so is a denial of due process and can result in any order being deemed a nullity.

2. The Three Types of Motions: Notice of Motion, Order to Show Cause, Notice of Cross Motion

CPLR 2214 authorizes a moving party to file two kinds of motions. The first is a notice of motion, and the second is an order to show cause. In addition, the non moving party can file a cross motion in response if they so choose.

a. Notice of Motion

A notice of motion is the most common type of written motion and is governed by CPLR 2214(a), (b) and (c). In a "notice of motion" the moving party sets the date of the motion and serves a copy of the motion before its filed with the court. It is not possible to obtain a temporary restraining order or interim order under a notice of motion, with one exception; that being the Appellate Division, First Department, which has a special rule to treat a notice of motion like an order to show cause.

(1) Motion Notice Requirements under CPLR 2214(a)

Section (a) requires that a notice of motion state the specific courthouse where the motion will be made, the exact date and time, and list the relief which is being requested. Finally, the supporting papers must be attached to the notice of motion. The address of the courthouse must be included as well.

(2) Motion Service Requirements under CPLR 2214(b)

Section (b) sets out the time frame for serving motion papers. These are minimum times, and are almost always expanded by the Court. Under CPLR 2214(b), a notice of motion must be served at least eight days in advance of the motion date. Five additional days are added when service by mail is used. Responding papers are due two days before the motion date. If the motion is served sixteen days in advance instead of eight, then answering papers or a cross motion must be served seven days before the motion date. Any reply is due two days before the return date.

(3) Motion Filing Requirements

Section (c) requires that the moving party file the same papers with the court which were served on the opposing party. An affidavit of service must be included with the copy filed with the court.

b. Order to Show Cause

An order to show cause is governed by CPLR 2214(d). Unlike a notice of motion, which is served first then filed, an order to show causes is filed first then served. It is filed before serving because the court sets the motion date, the amount of time for service of the motion, and how the order to show cause must be served. The method of service in an order to show cause is jurisdictional, and serving by any other means than specified deprives the court of jurisdiction to grant any relief, even if the means of service is better than set forth in the motion.

Because an order to show cause is filed first and signed by a judge before it is served, it is also the method by which an emergency order is obtained. When an emergency order such as a temporary restraining order is made, at least 24 hours notice to the other side is normally required.

In some instances, no notice of the request for an interim order is required, but these are limited in scope.

c. Cross Motion

The non moving party is authorized to cross move the Court for affirmative relief by filing a cross motion. It is otherwise identical in format to a notice of motion. Absent a cross motion, the court is without authority to grant affirmative relief to the non moving party and the non moving party is limited to opposing the motion.

3. Briefing the motion and the fully submitted motion:
Required Sets of Papers Necessary from Both Sides

In order for a court to full consider a motion, it needs to be fully submitted. Each side has its own set of papers filed with the court.

a. The Motion in Chief

The motion in chief is the motion filed by the moving party, which is either a notice of motion or an order to show cause. This is the set of papers that makes the actual request for a court order, and the reasons why the order should be granted.

It consists of:

The notice of motion or the order to show cause
An affidavit from someone with first hand knowledge of the facts in support of the motion
An affirmation by the attorney where the argument is presented. The attorney can also submit information that is known first hand to the attorney. Depending on the judge, the affirmation may also include case law and a legal argument, but many judges want this part to be a separate memorandum of law.
All supporting exhibits which support the factual claims made in the affidavit
Proof of service that the motion was served on the opposing side

b. The Affidavit in Opposition -or- Notice of Cross Motion

If the non moving party simply opposes the motion, they file an affidavit in opposition. If the non moving party wants to request affirmative relief in their favor, they file a cross motion. The cross motion acts as both an affidavit in opposition to the motion in chief and in support of the cross motion.

An affidavit in opposition is the opposition papers filed by the non moving party. This set of papers argues why the motion should not be granted. If a cross motion is filed, then the affidavit has two functions; it acts as both an affidavit in opposition and an affidavit in support of the cross motion.

The papers consist of:

If a cross motion is filed, then the notice of cross motion is attached, which is the same format as a notice of motion
The affidavit in opposition (no cross motion) or a single affidavit in opposition to motion and in support of cross motion (cross motion)
Attorney affirmation
All supporting exhibits which support the factual claims in the affidavit
Proof of service

c. The Reply (no cross motion) - or - Reply in Support of Motion and Affidavit in Opposition to Cross Motion

The reply is the last word given to the moving party. It is designed to allow the moving party to respond to the claims made in the affidavit in opposition. New relief cannot be requested in a reply. Nor can new facts be asserted outside those necessary to respond to the affidavit in opposition. When the non moving party has filed a cross motion, the reply acts as both a reply in support of the motion and an affidavit in opposition to the cross motion.

d. The Reply in Support of the Cross Motion

If a cross motion is filed, the party filing the cross motion is authorized to file a reply in response to the affidavit in opposition to the cross motion. It consists of an affidavit, an affirmation, and exhibits, if any.

e. Sur-Reply

Sur-replies are not normally allowed. They were common prior to 1963 when the CPLR was adopted, and are a response to the Reply. They are not authorized except when the Court gives express permission. Such permission is rarely granted and occurs only upon extraordinary circumstances.

4. Common Types of Motions and Various Relief

a. Pendente Lite Motions

In a matrimonial action, many times the relief requested in the action itself cannot wait until the final judgment. When pre judgment orders are necessary, they are available by filing a pendente lite motion. These motions are made on an expedited basis, and not all relevant facts are known, whenever practical, they try to maintain the status quo until a final determination can be made at trial. Typical pendente lite motions will request one or more of the following:

temporary custody of minor children
temporary parenting time with the minor children
temporary child support
temporary maintenance for a spouse,
temporary exclusive occupancy of the marital home,
temporary orders of protection,
interim awards of counsel fees,
interim awards of appraiser or expert fees
restraining orders to freeze marital assets.

b. Discovery Motions

One of the core concepts of the CPLR is liberal discovery. Should a party fail to comply with discovery requests, there are several options available.

Motion to Compel - This motion seeks a court order directing compliance with outstanding discovery.
Motion to Preclude - This motion seeks to preclude the non complying party from offering evidence at trial
Motion to Strike Pleadings - This motion seeks to dismiss the answer or complaint of the non complying party and treat them as if they had defaulted in the entire action.

c. Motion to dismiss

A motion to dismiss is made under CPLR 3211. A single motion to dismiss is authorized, and it must be filed before the answer is served. A motion to dismiss is used to weed out claims that have no merit. In deciding a motion to dismiss, the standard is to treat every claim in the complaint as true and based on that assumption, determine if the plaintiff would win. If so, the Plaintiff may proceed with their case.

Exceptions to this general rule exist, and it is possible to have a dismissal be on the merits.

Example:

Plaintiff brings a case alleging they are owed $100,000. The basis for this claim is there are eight days in a week. In determining whether or not to dismiss the claim, the facts are assumed to be true (i.e. there are eight days per week). Based on this assumption, would it allow the Plaintiff to collect the $100,000. Since the answer is no, the matter would be dismissed.

d. Motion for Summary Judgment

Once the answer is filed, either side may move for summery judgment under CPLR 3212. Summary judgment alleges there are no disputed facts that warrant a trial. It does not deprive a party of a trial, it says there is nothing that needs to be tried. To prevail in a summary judgment, the side seeking it must submit proof that their facts are true. The other side must then submit proof these facts are in dispute. When deciding a motion for summary judgment, the court will view the facts against the side making the motion and in favor of the side opposing the motion.

Example:

Plaintiff brings a case alleging they are owed $100,000. In the answer, the defendant does not dispute this debt and simply states they don't want to repay it. Plaintiff moves for summary judgment submitting evidence of this debt. The defendant responds by submitting an affidavit that admits the money is owed but doesn't want to repay it. Summary judgment would be granted in favor of the Plaintiff as there is nothing that warrants a trial.

e. Motion to Reargue

CPLR 2221(d) allows a party to file a motion reargue a prior motion. A motion to reargue is a request for a court to reconsider a prior decision. This motion must be made within thirty days of the initial decision. Needless to say most judges will not reverse themselves except in rare circumstances.

There is no appeal from a denied motion to reargue, but if reargument is granted then it may be appealed even if the court adheres to its original decision. See CPLR 5701(a)(2)(viii).

f. Motion to Renew

A motion to renew under CPLR 2221(e) is a request for a court to reconsider a order issued from a prior motion based on new evidence which was not submitted initially. A motion to renew must contain the following elements:

It must identify that it is a motion to renew
It must submit new facts not initially presented or a change in the law
It must show that a different outcome is likely under the new information
It must give reasonable justification why the new information was not submitted initially. Failure to give reasonable justification deprives the Court of authority to grant renewal.

g. Motion to enforce a prior court order

When a party fails to comply with an existing order or judgment, a party can bring a motion to enforce the prior order.

Enforcement motions include the following:

Motion for a money judgment
Motion for Contempt
Motion to appoint a receiver
Motion to turnover property or money

h. Motion for a Stay

A stay is an order suspending a case and preventing it from moving forward. Normally, a request for a stay on proceedings made to court where the case pending under CPLR 2201. If an order or judgment is being appealed, a motion for a stay of enforcement stay may be sought under CPLR 5519(c) either at the appellate or trial level.

Note that a stay of enforcement under CPLR 5519 is not the same as a general stay under CPLR 2201.

i. Motion for Permission to Appeal

If the Supreme Court issues an order for which no appeal lies of right under CPLR 5701(a), the losing party may seek permission to appeal under CPLR 5701(c) by filing a motion either in Supreme Court or the appropriate Appellate Division. If the motion is granted, the appeal is taken when the order granting permission is entered in the clerk's office. If the motion is denied, a motion for permission to appeal may be then filed in the Appellate Division under CPLR 5701(c).

5. Deciding the Motion

Upon the submission of all papers in support of, and opposing the motion, the court will make a decision, and issue an order in response to the motion. Some courts will require the motion be orally argued, but many courts will decide the motion based upon the papers alone. (This is called "on submission") The court can grant the motion in its entirety, deny it in its entirety, or grant some but not all of the relief requested.

6. Appealing the Order

In Supreme Court, a decision and order arising from a motion may be appealed as of right pursuant to CPLR 5701(a)(2), provided the motion was made on notice.

When no appeal as of right exists, a new motion must be made seeking permission to appeal. This motion may be made either in Supreme Court or the appropriate Appellate Division. See CPLR 5701(c).

No appeal lies from an order not made on notice. Thus, if an order to show cause grants a T.R.O. without notice to the other side, or if an order to show cause denies a T.R.O,, or in the rare instances a judge declines to even sign a T.R.O., it may not be appealed under CPLR 5701. Instead, the order may be reviewed under CPLR 5704. This option is available only if there was no notice whatsoever. Even poor notice made in bad faith will preclude review under CPLR 5704, and the immediate remedy to an order made in those circumstances lies in the trial court, not the appellate division.

About J. Douglas Barics
J. Douglas Barics is an attorney located in Commack NY who regularly represents individuals in all divorce and family law matters.

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Disclaimer: The article "Motions in New York Actions Order to Show Cause & Notice of Motion Explained" is provided as a free educational service and does not constitute legal advice. For more information see the full disclaimer.

Motions in New York Actions Order to Show Cause & Notice of Motion Explained