FAQ’s: Everything You Need to Know About Motions.

What is a Motion?

Motions. A motion is an application/request to the Court to do something.

For example, a motion to dismiss is asking the Court to dismiss certain causes of action because they have no legal or factual merit.

For example, a motion for summary judgment is asking the Court to render a judgment now in your favor because there are no issues of material fact.

There are 4 main types of Discovery Motions: (1) a Motion to Compel Discovery Responses (2) a Motion to Strike the Pleading for Failure to Comply with Discovery Demands (3) a Motion to Preclude the Admission of Documents at Trial and (4) a Motion for a Protective Order.

What does filing a motion cost?

The cost of drafting and preparing any motion will depend on the facts and complexity of the issues.

The filing fee for a motion is $45.

How is a motion filed?Notice of Motion vs. Order to Show Cause

A motion is filed by using either a Notice of Motion or Order to Show Cause along with supporting papers (discussed below), and paying the $45 motion filing fee.

As per www.nycourts.gov both a notice of motion and an order to show cause are used to ask the court to do something in a case. But, a motion has strict rules about the number of days it can be served before the court date (otherwise known as the “return date”). Many people find it easier to make an order to show cause because the court sets the court date and tells you how to deliver the papers to the other side.

An order to show cause is good to use in an emergency situation. It can often get you into court faster than a motion. It can ask the court for immediate help until the case is back in court, such as stopping a sale of a home, or the taking of money out of your bank account. This is called a stay or a temporary restraining order.

Filing a motion by using a Notice of Motion

Motion papers consist of a top page called a Notice of Motion, followed by an Affidavit in Support of the motion and in most cases an Attorney Affirmation in Support and/or Memorandum of Law in Support of the Motion, along with copies of any documents that the moving side thinks would help the Judge make a decision.

The party making the motion is called the movant.

The Notice of Motion tells the other side the date the motion will be heard by the court (the “Return Date”). This is sometimes called the return date, or the date the motion is returnable. This date is chosen by the movant according to the Civil Practice Laws and Rules.

The Notice of Motion must also tell the court and the other side what the movant is asking the court to do i.e. the relief being sought.

A sample Notice of Motion form for a motion for summary judgment looks like the following:

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF WESTCHESTER

———————————————————————–X    INDEX NO. 12345/2019

JOHN DOE

                                                            Plaintiff(s),

-against-                                                           NOTICE OF MOTION

JAMES DOE

                                    Defendant(s).

———————————————————————–X

SIR/MADAM:

PLEASE TAKE NOTICE, that upon the annexed affirmation of Jeffrey Davis., the affidavit of Ronnie Rosenblat, the affidavit of Karim Harried and upon all the verified pleadings and proceedings heretofore and herein, the undersigned will move this Court, at the Court house located at 111 Martin Luther King Jr Blvd, in the City of White Plains, County of Westchester, State of New York, on the  28th day of November 2019, at 9:30 a.m. of that date or as soon thereafter as counsel can be heard, for an Order pursuant to CPLR 3212 granting summary judgment in favor of the Plaintiff on the Plaintiff’s First Cause of Action (fraudulent inducement) and the Plaintiff’s Third Cause of Action (unjust enrichment); and for such other and further relief which to this Court seems just and proper under the circumstances.

Pursuant to N.Y. C.P.L.R. 2214(b), answering affidavits, if any, are required to be served upon the undersigned at least seven days before the return date of this motion.

DATED: November 30, 2019

            Hawthorne, N.Y.

Davis & Associates

_____________________________________

JEFFREY DAVIS, ESQ.

Filing a motion by using an Order to Show Cause

An Order to Show Cause consists of a top page called an Order to Show Cause (OSC), followed by an Affidavit in Support of the OSC, and in most cases an Attorney Affirmation in Support and/or Memorandum of Law in Support of the Motion, along with copies of any documents that the moving side thinks would help the Judge make a decision.

As per the nycourts.gov website: “The OSC tells the court and the other side what the movant wants the Judge to do. If the movant wants the Judge to order something right away that can’t wait until the court date, the OSC must say this too. For example, the OSC can ask the Judge to stop an eviction until the court date.” This is called a stay or temporary restraining order (“TRO”).

The OSC is given to the court for a Judge to review and sign. If the Judge signs it, the Judge picks the court date and fills it in on the OSC. The Judge also fills in how you must deliver the OSC to the other side. The Judge may cross-out or change the part that asks for help before the next court date.

What happens after a motion is filed?

When a Notice of Motion is filed, the other side has time to oppose the motion (called opposing papers) and then the movant, generally, has an opportunity to file a reply in further support of the motion.

All papers are submitted on the Return Date. When all the papers have been submitted the motion is deemed “fully submitted”.

Some judges require hard copies, some judges do not. In most cases the judges do not hear oral argument, however if they do require or want oral argument then they notify the parties in advance of such a date.

Once the motion is fully submitted, judges generally have 60 days to make a decision on the motion, however the reality is it will take however long it takes depending on the judge. In some instances a decision may be rendered quickly, in other instances you could be waiting 2 -6 months.

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