MOTIONS
OUTLINE
I GENERALLY
A. MOTION COMPONENTS
B. TIME OF SERVICE
C. APPEARANCES
D. DECISIONS
E. ENTER JUDGMENT
F. APPEALS
SPECIFIC MOTIONS
II BEFORE THE ANSWER
III DEFAULT MOTIONS
A. COMPEL ACCEPTANCE OF ANSWER
B. LIFT DEFAULT JUDGMENT
IV VENUE
A. MANDATORY: VENUE CHANGE AS OF RIGHT
B. PERMISSIVE: DIRECTED THE SOUND DISCRETION OF THE COURT
V SERVICE
VI DISCOVERY
A. BILLS OF PARTICULAR AND DISCOVERY RESPONSES
B. NON PARTY DISCOVERY
VII FURTHER EBTS AND IME’S, ORDERS TO SHOW CAUSE
A. FURTHER DEPOSITIONS AND PHYSICALS
B. ORDER TO SHOW CAUSE
C. FAILURE TO PROVIDE REQUIRED DISCOVERY IN GENERAL
VIII CONSOLIDATE
IX FAILURE TO PROSECUTE
X SUMMARY JUDGMENT
A. GENERALLY
XI COMMON SUMMARY JUDGMENT MOTIONS
A THRESHOLD
B. REAR END COLLISIONS
C. CROSS OVERS
D. CHAIN COLLISION
E. DOG BITES
F. TRIVIAL DEFECTS
G. SPECIAL USE
H SNOW AND ICE
XII RENEW AND REARGUE
A. RENEWAL
B. REARGUMENT
XIII STRIKE NOT OF ISSUE
ADVISE THE MANAGING ATTORNEY
1. WHENEVER THE ATTORNEY BELIEVES AN APPEAL SHOULD BE TAKEN
2. WHENEVER A MOTION MUST BE MADE TO COMPEL ACCEPTANCE OF AN
ANSWER
3. WHENEVER AN ORDER TO SHOW CAUSE MSUT BE BROUGHT ON THE EVE OF
TRIAL
4. WHENEVER A SUMMARY JUDGMENT MOTION IS WON, FOR OR AGAINST US IN
A SIR CASE.
EXHIBITS
1. MOTION COMPONENTS: NOTICE/AFFIRMATION/MEMO OF LAW
2. ORDER TO SHOW CAUSE NOTICE PAGE
3. SAMPLE NON PARTY DISCOVERY MOTION FOR POLICE RECORDS
4. SAMPLE JUDGMENT
MOTIONS
I GENERALLY
Article 22 of the CPLR entitled STAY, MOTIONS, ORDERS AND MANDATES controls the
methods of motion practice. CPLR 2211 defines a motion as an application for an order. When
we talk about motions we usually refer to those made on paper. The same section observes, "A
motion on notice is made when a notice of the motion or an order to show cause is served."
A. MOTION COMPONENTS
Typically a motion consists of a Notice, an Affirmation, Exhibits and perhaps a Memorandum of
Law. The Notice indicates what relief the moving party is seeking and when and where he
proposes that he motion will be heard. If a judge has already been assigned to the case, the
motion is usually made returnable before that judge, otherwise it is usually up to the court to
assign a judge. An Affirmation sets forth what relief is requested and sets forth the relevant facts
and circumstances claimed to justify it. It begins with the caption of the case and is followed by
an introductory paragraph which identifies the movant and who he represents, states that he is
making the representations pursuant to the pains of perjury as per CPLR 2116, and states the
following representations are based on information and belief, the source being papers
maintained in the file and office and conversations with various parties and their representatives.
Following this are numbered paragraphs which set out the facts and circumstances. These should
each be as specific and precise as possible, similar to the way they should be in a pleading. The
Affirmation closes with a "Wherefore" clause, a simple closing paragraph which restates the
relief requested. The Exhibits consist of whatever writings, photos, pleadings, transcripts or
other tangible items an attorney attaches to the paper towards substantiating the allegations he
makes in his affirmation, and are numbered or lettered in sequential order. A Memorandum of
Law consists of the legal argument which apply the controlling legal principles and cases to the
facts of the Affirmation. It is technically impermissible, even sanctionable, to argue law in an
Affirmation. In practice however, if the legal argument is simple and short and all that is
involved is parroting a well settled Black letter law principle or quoting a few cites, it is usually
made in the Affirmation. A complicated Memorandum of Law is laid out in the same fashion as
an Appellate Brief. A very simple Memorandum or Law may consist solely of a single point,
skip the introduction, table of contents, questions presented, and be attached as an Exhibit.
Examples of these Motion components are attached as exhibits to this section.
B. TIME OF SERVICE
2214 CPLR controls the time for service of motions, holding:
(B) Time for service of notice and affidavits: A notice of motion and supporting affidavits shall
be served at least eight days before the time at which the motion is noticed to be heard.
Answering affidavits shall be served at least two days before such time. Answering affidavits
shall be served at least seven days before such time if a notice of motion served at least twelve
days before such time so demands; whereupon any reply affidavits shall be served at least one
day before such time. This section of the CPLR also provides that,
"(C) Each party shall furnish to the court all papers served by him..."
C. APPEARANCES
Some Courts do not routinely require appearances on motions. Most of the Nassau and Suffolk
judges accept motions on "submission", that is they do not hear oral argument. This is not the
case with all Long Island judges, however, or with all kinds of motions. Judges routinely publish
their individual part rules of procedure which detail what days they will hear motions, whether
appearances are necessary, whether courtesy copies of motions are required to be submitted to
the Court and whether and under what circumstances adjournments of motions will be granted.
These are published in the Law Journal. In addition, the return date chosen by the attorney may
be subject to change by the Court or the judge. In some venues appearances are routinely
required, as in most New York City parts. If in doubt the attorney should call the chambers of the
judge to determine if he will require an appearance. It is a good practice in any instance the day
before appearing on a motion to call and make sure it is really returnable on that day and if an
appearance is required..
D. DECISIONS
Once a motion is heard or submitted, the Judge will eventually get around to issuing a decision.
Technically they are required to do so in 60 days, but often they take longer to do so. CPLR
2215. Most often we use a calendar service to submit the motion papers to the court and to
follow for the decision. They will send us a copy of it. Decisions typically come in two kinds,
those which direct us to settle an order and those which indicate that the court has already sent
the decision as an order to the clerk for entry. It is critical that the attorney follow up once he
receives a decision, failure to settle an order or to enter judgment can result in a ruling that the
hard won relief has been abandoned.
A decision which is detailed may be sent directly by the Court to the clerk to be entered in the
case. It will usually bear an indication of "Order Filed" or "Entered". In this case the winning
party will want to serve copies of the decision on his adversaries with a "Notice of Entry",
that is an indication that the attached order has been filed with the Court. In the case of a
dispositive motion, the attorney must assure that the clerk has received the decision and
entered it. This is because the time to commence an appeal will not begin to run until
judgment is entered. And because as a general principle, service of the order on the adverse
party is necessary to give it validity.
A decision which directs us to Submit an Order tells us to draw up a proposed Order which will
be signed off on by the judge and submitted for filing with the clerk of the court. A sample is
included as an exhibit. The proposed order begins with the caption, then sets out the fact that a
motion was brought by our offices on such and such a date for such and such relief, and that after
all sides having had an opportunity to be heard, it is hereby Ordered that such and such relief is
granted. The details about what specific relief is being granted may have been set out by the
decision, or may need to be restated. Where we are directed to Settle an Order, the proposed
Order is served on the adversary with a Notice that it will be submitted to the Court for signature
10 days hence. The purpose of this service is to give an adversary the chance to draw up his own
proposed order if he thinks you are including things which are not in the spirit or letter of the
decision. Service is called upon to submit the proposed Order to the Court and follow for the
Court’s signature. The Court may sign it outright or mark it as they see fit. (Or rarely refuse to
sign it and direct that it be resettled in a particular way). Once it is signed and returned to us it is
a valid order. The attorney must make sure that the order is filed by the clerk and must
then serve copies of the Order on his adversaries with a Notice of Entry. Service is generally
used to make sure orders are entered.
E. ENTER JUDGMENT
If a case is won, either by dispositive motion or at trial, a judgment must be entered. Siegel on
New York Practice observes at s 409, "A judgment is the resolution of the dispute and the note
on which the action or proceeding ends. It is the embodiment of the verdict or decision, to which
it must refer, and if it is the result of a default it must refer to that. All actions and proceedings in
the usual courts of civil jurisdiction today end in a "judgment". CPLR 5011. A sample judgment
is included, this one if from a trial and needs to be submitted with some proof of the jury’s
verdict. Commonly the clerk present in the courtroom during the trial provides an "extract" from
his minutes book, which the winner takes to the judgment clerk along with the proposed
judgment. In the case of a Summary Judgment motion, the Sample should be amended
appropriately. The duly entered order is proof of the resolution. The party at whose instance
judgment is entered also prepares a judgment-roll which he submits with the judgment and which
the clerk files when he enters the judgment. CPLR 5017(a). The roll consists of the basic papers
in the case, summons, pleadings, judgment and orders involving the merits or necessarily
affecting the final judgment. These contents are specified by CPLR 5017(b) (See Siegels at s
419). Often they are already in the possession of the clerk in his file, which enables the clerk to
put them together. The CPLR provides that formal "entry" occurs when, after the judgment has
been signed by the clerk, it is filed by him. CPLR 5016(a). The fact of entry is recorded by the
clerk in what is officially denominated a "judgment-book" which court clerks are required to
maintain. CPLR 9702(1).
F. APPEALS
Especially where we lose a Summary Judgment motion, or in the case of other motions which
substantially imperil our ability to mount a defense, the attorney must consider whether to
appeal the Court’s decision. This decision must be undertaken in conjunction with Claim.
In any instance where the attorney believes that an appeal should be undertaken the
Managing Attorney must be advised. In general claim will send out to outside counsel appeals
which seek to overturn a decision, because of the tremendous amount of time involved, while we
are more likely to be pressed into service defending an appeal.
SPECIFIC MOTIONS
The remainder of this section focuses principally on describing the most common motions we
deal with in chronological order, along with some comments on general associated practice.
II BEFORE THE ANSWER
Motion practice can commence even before a Summons and Complaint is answered, and in some
cases drafted. CPLR 3102(c) provides that certain discovery may be had upon a court order
before a action is commenced, usually such discovery as is necessary to start the action or
identify a defendant. CPLR 3024(a) provides for a motion to compel more specific pleadings
where the allegations made in the complaint are "Vague or ambiguous".
In some circumstances a motion to defeat the Complaint can be made even before the Complaint
is answered. This would be appropriate for example, where it is clear that the wrong complained
of is not actionable, or if the matter has already been the subject of a prior suite or resolved in
some other fashion. The attorney should proceed with caution in this regard however, and must
consult the managing attorney before deciding to challenge a complaint by a motion before
answering it. Usually the safest course is to answer, and then move. Any dispositive motion can
be preserved until after the answer is interposed, but if the attorney is incorrect in his decision to
make a motion and is cross moved against for default, he can have more trouble than the tactical
decision is worth.
III DEFAULT MOTIONS
REMEMBER THAT ORAL STIPULATIONS, AGREEMENTS OR
REPRESENTATIONS MAY NOT BE RELIED ON IN EXTENDING TIME TO
ANSWER DEFAULT MOTIONS OR LIFT A DEFAULT.
A. COMPEL ACCEPTANCE OF ANSWER
The first motion that is commonly encountered is one by the plaintiff for default. 3215 CPLR
controls this section. It provides that "When a defendant has failed to appear, plead or proceed to
trial of an action reached and called for trial, ...the plaintiff may seek a default judgment against
him." There shouldn’t be such a motion if things have proceeded as they should or typically do
up until the time we answer. Sometimes an insured will not have forwarded the Summons and
Complaint to his agent or insurance company. He may send the motion served on him pro-se for
default, or the plaintiff’s lawyer may send it directly to the insurance company if he has figured
out who they are through a DMV check or off the insurance code marked on the police report. In
other instances acrimony may develop between the plaintiff and claim handler. In some cases the
plaintiff will refuse to grant an extension of time for the defendant to answer if they are going to
interpose an affirmative defense of bad service or statute of limitations. We interpose it and the
plaintiff "rejects" or answer and moves for default.
When a default motion is made usually the first thing which is done is to contact the adversary
and see what can be worked out. In practice defaults, winning the case on a technicality without
even litigating the matter, are abhorred by the courts. Public policy favors resolutions on the
merits. Mulder v Rockland Armor and Metal Corp. 315 AD2d 140 (2 ad 1988). Most often some
accommodation is reached concerning the affirmative defenses and putting the answer in. See the
Pleadings section on Service concerning particulars in this area. A leading case in this area in
Muhlahaney v Triple Cee Bar and Restaurant Supple Co. 521 N.Y.S.2d 146 which holds that
pursuant to CPLR 3215(c) an affidavit in support of an application for a default judgment need
only allege enough to enable the Court to determine that jurisdiction lies and that there is a cause
of action upon which relief may be granted. A defendant upon default is deemed to have
admitted all traverable allegations, including the basic allegation of liability, but may contest a
plaintiff’s conclusions as to damages. If the default motion must be opposed the relief requested
is for an order compelling the plaintiff to accept the answer. As a general rule a default will be
vacated and a late answer deemed timely served if a defendant can show there to be some merit
to his defense and that there is some reasonable excuse for delay in serving an answer.
McFadden v. Battaglia 552 NYS2d 189 (2AD 1990) General Accident Group v Scott 465
NYS2d 315. The attorney must be mindful that the proof of meritorious defense requires a
affidavit from the client. Since this must often be obtained quickly, it may be necessary to use an
investigator to round it up. Also be mindful that what constitutes an excuse for a late answer is
the subject of considerable technical discussion. Law office failure may not be enough. Taieb v .
Hilton Hotels Corp. 459 NYS2d 760 (1 AD 1983) In any circumstance where it is necessary
to make a motion to compel acceptance of an answer, the Managing Attorney must be
notified. Further in this area the attorney should be mindful that a plaintiff who accepts a late
answer waives a defendant’s default. Myers v Stutsky 527 NYS2d 464 (2AD 1988). In addition
there is a substantive area of law concerning the fact that failure to take a default within a year
after service of an answer will result in dismissal of the action upon application or the court’s
own initiative. CPLR3214(c) Memorial Hospital v Wilkins 532 NYS2d810.
B. LIFT DEFAULT JUDGMENT
Sometimes the problem will be so far along that a Motion for a Default by a plaintiff will have
already been granted without opposition and a Default Judgment entered. At this point a date for
an inquest may be scheduled by the Court. In such a circumstance the first thing to do is again try
to work out a stipulation with the adversary which will permit an Answer to be interposed.
Failing this a Motion to Lift the default and compel acceptance of an Answer must be made
immediately. This motion is in nearly all respects the same as the motion made in opposition to a
Default motion, controlled by the same law and cases. No inquest may ever be permitted to go
forward without an attempt to forestall it by a motion to compel the answer. Again, in any case
where a motion must be made to compel acceptance of an Answer the Managing Attorney
must be advised.
IV VENUE
Most motions concerning venue fall into one of two types, mandatory or permissive.
A. MANDATORY: VENUE CHANGE AS OF RIGHT
So called mandatory changes of Venue are controlled by Article 5 of the CPLR. Section 503
controls venue based on the residence of a party, including corporations. CPLR 504 controls
venues of actions against municipalities and school districts. CPLR 511 describes the procedure
to use when it is claimed that the venue in improper as a matter of law. A notice of intent to bring
such a motion, characterized as a Demand for Change of Place of Trial must be served with or
before the answer. The Demand must specify what county the defendant proposes venue be
changed to. Thereafter the defendant may move to change the place of trial within fifteen days
after service of the demand, unless the plaintiff consents to the proposed change within five days.
There is a tricky angle to where the Motion to change the venue itself may be brought. The
motion may be brought in the county to be changed to unless the plaintiff serves an affidavit
within five days of service of the Demand showing the his choice of venue is correct. This relief
has been characterized as one of a mater of right. Franklin Traffic Service, Inc.. v Helmers Fuel
& Trucking , Inc. 530 NYS2d 362. (4 AD 1988). Generally, Venue in a civil action cannot be
kept in an improper county when neither party resides in that county. Person-Aaron v O’Connor
561 NYS2d 247 (1 AD 1990). The timeliness requirements of this section viz. both the original
Demand and Motion are quite hard, "Once having failed to timely demand a change, a party is
not entitled to a change as of right and an application for a discretionary change of venue should
be made in the county where the action is laid." DMC Construction Corp. v. A. Leo Nashsteel
Corp. 416 NYS2d 649. (2 AD 1979).
B. PERMISSIVE: DIRECTED TO THE SOUND DISCRETION OF THE COURT
CPLR 510(3) allows for a change of venue upon a motion convincing the court upon grounds
that "[T]he convenience of material witnesses and the ends of justice will be promoted by the
change". In addition CPLR 327 entitled "Inconvenient Forum" provides a similar mechanism to
change venue predicated upon a showing of "substantial justice". The "Inconvenient Forum"
provision is often used when litigants are from differing states. However, even if all the litigants
are New York residents this section can still be used in appropriate circumstances to move the
action to another jurisdiction. Westwood Associates v Deluxe General Inc. 53 NY2d 618 . The
motion is addressed to the sound discretion of the Court. Meshulam v Brill 534 NYS2d 180.
Generally the cases turn on the issue of whether there is a "substantial nexus" between the
action and the current venue. Jackson v Maas 501 NYS2d 54 (1 AD 1986), Da Costa Fonseca v
Frota Oceanica Brasileira, 412 NYS2d 145 (1 AD 1979) Frontier Manufacturing Inc. v CompAire Systems, Inc. Joy. (4 AD 1983). And on the issue of "justice, fairness and convenience".
Cappellini v. United Technology of New York 433 NYS2d 607 (1 AD 1980). Further a dismissal
based on forum non conveniens may be conditioned on the appearance and submission to
jurisdiction of the moving parties in the alternate forum and on their waiver of the Statue of
Limitations insofar as it had not run before the institution of the action in New York. Adriana
Development Corp. v Gaspar 439NYS2d 927 (1 AD 1981).
A motion pursuant to CPLR 510(3) usually turns n the convenience of material witnesses, parties
and their employees and members of their family don’t count. Ithaca Peripheral v Sequoia
Pacific Systems. 529 NYS2d 47 (3 AD 1988) It has been held that as a general rule the tort
action should ordinarily be tried where the cause of action arose, the "overriding consideration"
is the location of the principal nonparty witnesses. Hoyt v Le Bel 502 NYS2d 888 (4 AD 1986).
A party moving for the change of venue based on the convenience of witnesses "must name such
witnesses, state that they will testify on behalf of the movant, specify the substance of their
testimony and state that upon advice of counsel, such testimony will be material and necessary at
trial." HoJohn v Hamilton 432 NYS2d 266 (3 AD 1980) Greene v Hill-Crest General Hospital
515 NYS2d 550 (2 AD 1987). Their specific inconvenience must also be established. Frey v Fun
Tyme Ski Shop 557 NYS2D 77 (1 AD 1990).
V SERVICE
NOTE THAT SERVICE MOTION PRACTICE HAS BEEN DRAMATICALLY CHANGED,
IN FACT NEARLY ELIMINATED BY THE REVISIONS TO SERVICE OF PROCESS
ENACTED BY THOSE LAWS DETAILED AS FOLLOWS.
(FROM SCALES, 2/98, BY JIM TOOMEY)
Courts Get Discretion to Extend Time to Serve SummonsChanges Affect Actions Started after January 1, 1998
Late in 1997, the Legislature gave the New York courts discretion to extend the time for
a plaintiff to serve a civil summons (with Notice or Complaint) after filing it with the county
Clerk. If litigants have not obtained service within 120 days of filing, they now can get a court
order extending the time for service. This can be done even if the Statute of Limitations has
run.
The Legislature passed a number of changes to the civil filing rules in C.P.L.R. S 306-a
and 306-b. They are effective for actions started (by filing the Summons with Notice or
Summons and Complaint) on or after January 1, 1998. 1
The changes also include elimination of an automatic dismissal provision of the prior law
for actions in which proof of service has not been filed within 120 day of the filing of the
Summons. The automatic additional 120 day extension beyond the original 120 day period, if
plaintiff pays another filing fee ($170 in Supreme Court), has been done away with as well.
These changes have an impact not only on general litigation, but also on Special
Proceedings. The latter types of cases are used for setting up framed issue hearings on Petitions
to Stay Arbitration in uninsured (UM) and supplemental underinsured (SUM) motorist
arbitrations. The Courts have discretion to extend the time to serve the initial pleadings in
Special Proceedings beyond the 15 day post filing deadline.
Historical Changes in when suit is commenced affect the running of Staute of Limitations
One of the first questions to be asked when a claim is put into suit is "do they make the
Statute?" There was a time when the answer to that question was easier to come by. At least
three waves of legislative change in the 1990’s altered that framework considerably.
Before 1992 a suit was started in a Supreme Court case by serving a Summons. The case
could then proceed, theoretically all the way to trial readiness, (if there was no prior need for
judicial intervention) without any court file being opened.
The rule was that if the Summons was not properly served before the relevant Statute of
Limitations expired, the case was subject to dismissal. A brief window had been left open in the
prior law- the running of the Statute could be "tolled" by filing the summons with the county
Clerk and then serving the Sherrff of the appropriate county. The toll was in effect so lon as
plaintiff completed service of process within 60 days.
The point of a Statute of Limitations was a policy decision by the Legislature to weed out
stale claims. This seemed a practical and just objective since, over time, witnesses disappeared,
memories faded and potential defendants needed a point in time in which their fear of being sued
could be put to repose.
The debate in older cases was usually not over date a particular lawsuit was started but
over the propriety of service and acquisition of personal jurisdiction. There was also some high
level litigation over when the Statute start running. The latter cases dealt with abstractions such
as, when did an injury occur? Did the right to sue accrue upon exposure to a toxic substance or
when injury became manifest?
There were a number of developments in the 1980’s which showed that the Legislature
did not regard the Statute of Limitations as an untouchable defense. The toxic tort area resulted
in special legislation finding that "manifestation" was the key point for starting the Statute
running. More important, toxic tort actions involving asbestos or agent orange exposure which
were beyond the Statute could be revived. Other revival legislation was enacted involving the
changing standards in premises cases involving the Fireman’s Rule for police and fire fighters
injured in the line of duty.
In 1992 the Legislature enacted a requirement that an index number be purchased and the
Summons be filed with the county Clerk. A separate index number would have to be purchased
for third-party impleader actions and those summonses be filed as well. This measure and a later
technical correction were for the express purpose of raising revenue for the State.
The 1992 changes were short-lived. 1993 saw changes which affected the substance of
lawsuits as well as procedure. They copied aspects of the Federal "mandatory filing" system for
civil cases. New York civil cases would be started by the filing of the jurisdictional legal
instrument- the summons (with Notice or with the complaint) with the county Clerk.
1993 Changes: Suit Commenced by Filing
The key change seen in 1993 was that lawsuits were deemed commenced by filing a
summons with the county Clerk. As long as the summons was filed with the Clerk before the
Statute of Limitations expired, it was timely. The legislation also contained a big BUT which
added some murk to the waters.
The "commencement by filing" legislation also provided that proof of service be filed
with the Clerk within 120 days of the original filing. If proof of service was not filed within the
120 days, the action was automatically "deemed dismissed without prejudice" 2 If the statute of
limitations had expired, plaintiff could still get and additional 120 days on top of the original 120
days to try to serve the summons, simply by bying a new index number and filing the summons
(again). If proof of (proper) service was within the second 120 day period, the Statute of
Limitations would not be a bar to the action, so long as the original filing of the summons was
timely.
1997 Legislation, as applied ti actions started on or after January 1, 1998
The latest legislative adjustment eliminates the second 120 day window which had
automatically been allowed, provided a new index number fee was paid. Instead, a litigant can
now move (by order to show cause or notice of motion) for additional time to serve the summons
beyond the first 120 day window. This should be granted in the discretion of the court, so long as
some unspecified "good cause" is shown.
The new procedure does not include any outer limit to the discretionary extension. It
conceivably could be beyond an additional 120 days. The key date is the original date of filing
the summons. If the latter was timely, then proper service of the summons within the extension
period will also be considered timely.
The new legislation also requires service of the summons to be accomplished within the
120 days of the original filing or the discretionary extension period. The old law required that
proof of service be filed within the extension period. In connection with this change, the new
legislation does away with the automatic "deemed dismissed" language of the old practice if
proof of service is not filed within the extension period.
UM and SUM Petitions to Stay Arbitration have a tight Statute of Limitations- 20 days
after receipt of the demand for arbitration. The new statute requires filing of the Notice of
Petition and Petition within the 20 day limitations period. Service must then be accomplished
within 15 days of filing. The court, in its discretion, may then grant an extension of time to serve
those papers.
The legislature has thus added fluidity to the murky waters of Statute of Limitations
defense analysis.
THE FOLLOWING SECTION DETAILS PRACTICES WHICH EXISTED PRIOR TO
THE REVISIONS DETAILED ABOVE. Ed.
Typically motion practice on this issue begins when we have interposed an affirmative defense
of lack of jurisdiction and either refuse to withdraw it or do not withdraw it quickly enough to
please the plaintiff. Customarily the plaintiff will make an allegation that service was proper and
will attach the affidavit of service as an exhibit. This must be sufficient on its face in the first
instance. CPLR 306 places the affirmative burden on the plaintiff of alleging compliance with
CPLR 308(2). The service must be made only in the manner authorized by the CPLR, usually
CPLR 308 et. seq. The Statute requires that the affidavit of service show the time, date, place and
person served. It must also set forth the facts showing that the service was made by an authorized
person and in an authorized manner. James v Brandt 543 NYS2d 867, (Bronx Supreme 1989)
See for example: did not state the place where service occurred, Concerned Citizen Org. v
Redman 519 NYS2d 659 (2 AD 1987), devoid of requisite factual and descriptive information to
show that the Summons and Complaint were delivered to the defendant personally, De Zego v
Donald F. Bruhn MD PC 67 NY2D 875 (1986).
Assuming that the affidavit is sufficient on its face, in opposition to this, we are required to rebut
the presumption of the affidavit’s correctness with a sworn denial by our client. Once this is done
the affidavit of service is rebutted and the plaintiff must establish jurisdiction by a preponderance
of the evidence at a hearing which will be set down by the Court called a Traverse hearing.
Skyline Agency, Inc. V. Ambrose Coppotelli, Inc. 502 NYS2d 479 (2 AD 1986) Frankel v
Schilling 540 NYS2d 469 (2 AD 1989). The attorney needs to be familiar with the various ways
in which service can be effected, especially the cases interpreting the concept of due diligence in
attempting personal service before resorting to nail and mail. See for example Prudential
Property and Casualty insurance Co. v Holtzman 522 NYS2d 595 (2 AD 1987).
An unchallenged affidavit obviates the necessity for a hearing. Prometheus Books v Russica
Book and Art Shop Inc. 482 NYS2d 639 (4 AD 1984). Department of Housing Preservation &
Development of City of New York v. Williams 1980. This means that where we cannot contact
our client because they refuse to cooperate with us we will be unable to oppose such a motion if
the affidavit of service is sufficient.
VI DISCOVERY
A. BILLS OF PARTICULAR & DISCOVERY RESPONSES
If a plaintiff fails to supply us with a response to our Demands for a Bill of Particulars, Specified
Information or other Discovery the remedy is to ultimately bring a motion to preclude the
plaintiff from introducing any evidence which would have been supplied in the Responses to the
Demands. That effectively means the entire plaintiff’s case, so that a flat out win on this
litigation will win the case. Usually before brining such a motion a few phone calls and letters
precede. This is to satisfy the Good Faith requirements and to prevent in practice unnecessary
motion practice. CPLR 3042(d) controls this practice. In custom this is a very simple and
formulatic application. Many attorneys simple tell their secretary to make such a motion and it is
done. Some secretaries will even undertake on their own to monitor responses to their lawyers
new cases and grind out the motion when the time is right. The allegations of the motion are
simply that the issue has been joined, the Demand made, a Good Faith effort to resolve the issue
attempted, and no Discovery forthcoming. Almost invariably the Court will issue a Conditional
Order, that is an Order of preclusion which will only kick in if the plaintiff blows a 30 or 45 day
deadline. "Absent willful, deliberate and contumacious conduct, the accepted remedy for a
party’s failure to serve a timely Bill of Particulars is to grant a preclusion order conditionally
and, where appropriate, assess costs." Scott v lawyers CO-Operative Publishing Co. 476 NYS2d
693 (4 AD 1984). Even if the plaintiff then fails to comply with the conditional order the battle is
not necessarily won, although monetary sanctions are likely to be imposed. See for example
Higgins v. Community Hospital at Glen Gove 522 NYS2d 186 (2AD 1987) Farrell v New York
State Electric and Gas Corp. 501 NYS2d 235 (3 AD 1986).
B. NON PARTY DISCOVERY
"The scope of disclosure as to a non-party is governed by CPLR 3101(a) which provides, in
pertinent part, that there shall be full disclosure of all evidence material and necessary in the
prosecution or defense of an action regardless of the burden of proof of any person [non-party]
upon notice stating the circumstances or reasons such disclosure is sought or required. this
provision has been liberally construed to give effect to the strong public policy favoring full
disclosure to adequately prepare for trial." New York State Electric and Gas Corporation v.
Lexington Insurance Company 553 NYS2d 369 (1 AD 1990). Attached as a sample are motions
directed at NYPD for police records.
A special form of Motion Practice associated with non-party discovery the attorney must be
familiar with arises on the eve of trial when the plaintiff serves a subpoena on the defendant’s
IME Dr. which demands all office, financial and patient records for the last several years.
Ostensibly this will be used to develop the extent of a Doctors financial relationship to a with an
insurance carrier and then to discredit him at trial. In practice the intent is often merely to rattle
the adversary. In such a case the attorney must move to quash the subpoena. See for example
Siskin v 221 Sullivan Street Realty Copr. 556 NYS2d 915 (1 AD 1990)
VII FURTHER EBTS & IME’S BY ORDER TO SHOW CAUSE IF NECESSARY
Under certain circumstances a motion is necessary to compel further Depositions or Physicals of
a plaintiff. This is also a convenient place to discuss Motions brought by Order to Show Cause
since this mechanism is frequently used in this area to get the further EBT or IME
.
A. FURTHER DEPOSITIONS AND PHYSICALS
When a plaintiff Amends his Bill of Particulars pursuant to CPLR 3042, (requiring a motion to
get the Court’s permission for the Amendment,) and alleges injuries of a substantially different
nature, or marked complications from the original injuries further discovery is warranted. O’Neil
v Schlessinger 447 NYS2D 453 (1 AD 1982). Further discovery may also be warranted, although
not necessarily, when the plaintiff Supplements pursuant to CPLR 3043(b) (can be done up to 30
days before trial without the court’s permission, but is intended only to permit particulars of
continuing and maturing injuries that were listed and set forth in the original Bill of Particulars)
The trigger language used is the pleading of "unusual or unanticipated condition" Luboff v
Temple Israel of Jamaica 486 NYS2d 48 (2 AD 1985). In such a circumstance a further
Deposition is appropriated to question the plaintiff on the issue of damages and the new injury
details. Costa v Massapequa General Hospital 425 NYS2d 972 (2 AD 1980).
If the plaintiff attempts to Amend or Supplement his Bill long before trial, the Amendment will
most likely be granted since it is the law’s intent to freely grant Amendments in the absence of
prejudice. Koch v St. Francis Hospital 490 NYS2D 782 (2 AD 1985).The attorney should at least
make sure that he moves if necessary, that is if plaintiff will not agree, for further depositions
and physicals. In many cases the plaintiff will attempt to Amend or Supplement his Bill on the
eve of trial. There is a substantial body of law which may permit the defendant to Strike the
attempted Amendment based on lateness and prejudice. Dubissett v Bavis 551 NYS2d 267 (2
AD 1990) Simpson v Browning-Ferris Industries Chemical Services, Inc. 537 NYS2d 73 (2 AD
1989).
B. ORDER TO SHOW CAUSE
Very often the plaintiff will attempt his Amendment so close to the proposed trial date that the
defendant will have to move to strike the pleading or for a stay and further discovery by Order
To Show Cause. An Order to Show Cause is nothing more than a Motion which is brought on by
short notice. It is controlled by CPLR 2214(d). The mechanism for getting the Order to Show
Cause going is a little tricky, and varies somewhat from county to county. Basically what is done
is that the proposed OTSC is submitted to a Judge who will decide first even if the motion may
be brought pursuant to an OTSC, and if so provide precisely when and where the OTSC will be
heard, how it must be served on the adversaries and determine if the proceedings shall be stayed
during the application’s pendency.
The OTSC’s Affirmation, Exhibits and Memorandum of Law are drawn up the same as any other
motion. The only difference is that the Affirmation must include an indication that no previous
request for the relief requested has been made, and must include an indication of why it is
necessary to bring the motion by an OTSC. The Notice is different in several respects. When the
motion will be made returnable is left blank, and included is a proposed method and time of
service. For example the OTSC Notice will include language which proposes that "Service by
personal delivery on plaintiff’s counsel and all other parties on or before [date] will constitute
good and proper service." The Notice will also typically contain proposed language that the
action will be stayed until the OTSC has been heard and decided. The proposed OTSC is usually
submitted to a clerk who serves what is characterized as an "Ex Parte" Part, so the Notice usually
reads in the upper right hand corner "At an Ex Parte part held in and for the County of [Venue]."
The Notice contains a signature line for a Judge of the Supreme Court to sign. In this fashion the
Notice of Motion actually becomes a Court order directing that the Motion be heard and the
adversary "Show Cause" why the requested relief should not be granted. The proposed OTSC
should be reviewed by a judge within a day. If granted the Notice will be marked by the judges
(and clerks) hands in pen to fill in information about how and when the Motion must be served
and the Motion heard and whether a stay is in place. The attorney returns to the clerks office with
another copy of the OTSC and "Conforms" his copy. That means he takes a black pen and makes
the exact same marks and changes, strike out and write ins on his copy as the one the Clerk is
holding onto. These conforming markings typically include the time and place the motion is
returnable, how it must be served, who signed off on it and whether a stay is in place. The
attorney then serves conformed copies of the OTSC on his adversary in the manner indicated by
the time indicated and shows up when and where he is supposed to argue the matter. When the
attorney appears to argue the OTSC he must have affidavits of service showing that the
conformed OTSC copies were served correctly. If he does not the motion will not be heard.
C. FAILURE TO PROVIDE REQUIRED DISCOVERY IN GENERAL
In general it is appropriate to move to dismiss the plaintiffs complaint where he repeatedly fails
to comply with discovery requests. Such a dismissal for failure to reply to Discovery requests is
authorized by 22 NYCRR 202.27(2) and Damore v Helmsley Palace, Inc., 549 NYS2D 709 (1
AD 1990).
VIII CONSOLIDATE
This area is controlled by CPLR 602(a). Frequently several actions will arise out of the same
accident as multiple drivers and passengers get around to retaining lawyers and bring their
plaintiff actions piecemeal. In such a situation the consolidation motion, or its close relative, the
motion for a joint trial, is desirable to consolidate the actions for several reasons. The most
obvious one is convenience, ensuring that all discovery takes place on the same timetable and
that witnesses do not have to be deposed multiple times in each action. It will also lend itself to a
cleaner disposition minimize the danger that a limited insurance policy will be exhausted on one
action and not have enough left for the rest. Consolidation is proper when two or more cases
involve common questions of fact and are both pending before the Court. Aghabekian v. Bayside
Hills Associates 414 NYS2D 1013 (2 AD 1979). The power to order consolidation rests in the
sound discretion of the Court and where common questions of law and fact exist, consolidation is
warranted unless the party opposing it demonstrates prejudice to a substantial right. The mere
fact that responsive pleadings have not been served does not preclude consolidation. Cushing v
Cushing 445 NYS2D 636 (3 AD 1981). A consolidation may also be appropriate where the
plaintiff has two or more lawsuits pending from different accidents and one aggravated the injury
of another. This will permit the jury to thread out which accident caused what injury. Boyman v
Bryant 520 NYS2D 183 (2 AD 1987).
The consolidation motion also lends itself to an effort to change venue. When two actions are
pending in different counties, the motion to consolidate may be made in either county, and in the
order consolidating the two actions, the Court must necessarily fix the venue of the consolidated
action. Woods v County of Westchester 492 NYS2D 829 (2 AD 1985). The stated purpose of
CPLR 602(a) is to avoid unnecessary costs or delays and inconsistent verdicts. If these goals will
not be met it may be possible to resist a consolidation motion. Durante v Rentar 428 NYS2D 484
(2 AD 1980).
In practice most courts will order a joint trial of the actions rather than a pure consolidation. It
has been held that this is appropriate when a second action injury aggravated a first injury. Gage
v Travel Time & Tide Inc. 554 NYS2D 910 (1 AD 1990). It has also been that consolidation is
improper when one party would be both a plaintiff and a defendant since such an alignment
could be a source of confusion at a jury trial of a consolidated action. Brass v France 418
NYS2D 43 (1 AD 1979). If a joint trial is granted, the matters will ordinarily proceed on the
same discovery schedule and be tried at the same time. Separate Notes of Issue are required from
the plaintiffs.
IX FAILURE TO PROSECUTE
CPLR 3216 controls motions to dismiss a plaintiff’s action based on his failure to prosecute it.
Generally a defendant will attempt to use this mechanism when nothing has happened on a case
for a year. It is also used a lot of times to get a case back on track when a plaintiff has let it stall
or go dormant after service of a Bill of Particulars. As a predicate to being justified to move for
this relief, the defendant must serve upon the plaintiff a "written demand by certified or
registered mail requiring the party against whom such relief is sought to resume prosecution of
the action and to serve and file a note of issue within ninety days after receipt of such demand"
and apprising him that failing that the motion to dismiss will follow. CPLR 3216 (3). This is
technically also the section controlling efforts to dismiss a plaintiff’s case when he has not
sought to enter judgment a year after a default. If the plaintiff fails to timely comply with the
demand to file a Note of Issue, he can only oppose the motion which follows to dismiss with a
justifiable excuse for the delay and a client’s affidavit of a good and meritorious cause of action.
The affidavit of merit must contain evidentiary facts which establish a viable cause of action. It
must be as good as the kind of affidavit which could defeat a motion for summary judgment.
Jones v First Federal Savings & Loan of Rochester 476 NYS2D 688 (4 AD 1984). Grovey v
Gimbel Brothers Inc. 537 NYS2d 67 (2 AD 1989). There is some authority, however, that a
verified complaint and Bill of Particulars can serve as the affidavit of merit. Argenti v Hospital
for Special Surgery 464 NYS2d 186 (1 AD 1983). Weiss v Weis 526 NYS2D 301 (4 AD 1988).
A troublesome aspect of this area comes when plaintiff immediately files the Note of Issue and
Certificate of Readiness in response to the Demand, but does so even though Depositions or
IME’s or other necessary discovery has not been conducted. It is inappropriate for the plaintiff to
do this where the Certificate of Readiness is patently defective. In such a situation the plaintiff is
expected to apply for an extension during the 90 day period to complete discovery pursuant to
CPLR 2004. Papadopoulas v R.B. Supply Corp, Inc. 543 NYS2D 483 (2 AD 1989). Wilment v
New Holland Division of Sperry Rand Corporation 535 NYS2D 495 (3 AD 1988). In such a
situation the defense counsel should immediately make his motion to dismiss. Another tactical
problem is that the defendant will usually be buying into an extremely accelerated discovery if
plaintiff does respond aggressively to the Demand. There is troubling authority, however, for
the proposition that a defendant who makes a Demand pursuant to CPLR 3216 waives
their rights to have plaintiff examined and to obtain additional discovery. Wolanian v.
Halliman 535 NYS2D 1007 (4 AD 1988).
For these reasons, a tactical alternative to employ when faced with a stalled case is to serve a
Deposition Notice, and then move to strike Plaintiff’s pleadings for failure to provide necessary
discovery if they refuse to go forward with the deposition. Such a dismissal for failure to reply to
Discovery requests is authorized by 22 NYCRR 202.27(2) and Damore v Helmsley Palace, Inc.,
549 NYS2D 709 (1 AD 1990). In all probability the court will grant a conditional order, but if
the plaintiff cannot dig up his client he will blow the conditional order date and a dismissal is
now probable. This practice generally gets as good results with less effort and less problems.
Another effective and risk free alternative is for the defendant to move for a preliminary
conference.
X SUMMARY JUDGMENT
A. GENERALLY
Summary Judgments are controlled by CPLR 3212. This is an application to the Court which
contends that there are no triable issues of fact and that the movant is entitled to win outright
based on the documentation provided with the Motion. These are generally difficult to prevail
upon since it is considered a drastic remedy "to be granted only where there are clearly no triable
issues of fact presented." Calieno v Sutherland 460 NYS2D 185 (3 AD 1983) Gale v Kessler 461
NYS2D 295 (1 AD 1983) Simon v Wohl 460 NYS2D 826 (2 AD 1983). From the plaintiff’s
perspective the motion must be supported by an affidavit, a copy of the pleadings and by other
available proof. The former is required to show that there is no defense to the cause of action or
that the defense has no merit. The law provides that the motion is to be granted if, upon all the
papers and proof submitted, the cause of action is established sufficiently to warrant the Court, as
a matter of law, to direct the entry of judgment in favor of the claimant. The motion will be
defeated if the defendant can show facts sufficient to require a trial of any issue of fact other than
an issue as to the amount or extent of damages. Cucalon v. State of New York 427 NYS2D 66
(Court of Claims 1980). Since on a motion for summary judgment the focus of the Court’s
function is issue-finding, the affidavits should be scrutinized carefully in the light most favorable
to the party opposing the motion. Robinson v. Strong Memorial Hosp. 470 NYS2D 239. A
defendant moving for summary judgment has the burden of proving by evidence in admissible
form that the plaintiff has no cause of action. Barrett v. General Electric Company 534 NYS2D
632 (4 AD 1988). For the Court to grant a motion for summary judgment it must clearly appear
that no material triable issues of fact are present. The Court’s function is that of issue finding
rather than issue determination. If a factual issue exists, or if there is significant doubt of its
existence, or even if it is arguable, the motion must be denied. It is incumbent upon a party
seeking summary judgment to set forth sufficient evidence to demonstrate the absence of any
material issues of fact, thereby establishing a prima facie entitlement to judgment as a matter of
law. Once this showing has been made, however, the burden shifts to the party opposing the
motion to produce evidentiary proof in admissible form sufficient to establish the existence of
material issues of fact which require a trial of the action. The affidavit of an attorney, even
absent personal knowledge of the facts, may be given weight in a summary judgment application
if it is merely a vehicle for the submission of other material which constitutes evidentiary proof.
An attorney’s affidavit regarding an event of which he has no personal knowledge is devoid of
evidentiary value and cannot afford a basis for either granting or denying a summary judgment
application. Estate of D’Angelo 526 NYS2D 729. (Surrogate Court, Bronx, 1988). Usually these
motions are best made at the completion of discovery, usually to make them before depositions
have been held will not be fruitful.
XI COMMON SUMMARY JUDGMENT MOTIONS
A. THRESHOLD
Section 5102 of the Insurance law requires that a plaintiff in an Automobile case have a Serious
Injury as a predicate to bringing a law suit. Otherwise their sole remedy is limited to recovering
benefits under No-Fault. What is a Serious Injury and whether the plaintiff can establish that he
has one is the subject of a lot of litigation and the majority of Summary Judgment motions we
make. The leading Court of Appeals case in this area is Licari v Elliot 57 NY2D 230 1982. This
is mandatory reading for all attorneys, and rather than discuss in length at this point the case’s
detailed discussion of what constitutes a Serious Injury, the case is attached as an exhibit to this
section. Our office maintains a collection of cases sorted by injury which can be used to quickly
assemble a Summary Judgment motion in this area. While such a motion can be based solely on
the plaintiff’s medicals, usually we will wait until our own IME is done before drafting the
motion. The attorney should be mindful of the requirement that reports of our Doctors we use in
support of these motions need to be in "admissible form", usually understood to be an affidavit.
As a method to set up our Doctors reports for this use, the reports themselves may be subscribed
with an affidavit signature when sent to us. Hochlerin v Tolins 588 NYS2D 795 (2 AD 1992).
B. REAR END COLLISIONS
The most common summary judgment motion made against us concerns the allegation that our
client struck the plaintiff’s vehicle in the rear. A possible defense to this claim can be found if
there are facts which support a claim that plaintiff stopped short. Gross v Napoli 628 NYS2D
407 is a case tried and won in this office by Vic Natale even though our client stuck the plaintiff
in the rear. In sustaining the jury’s verdict the Appellate Division held that the finding that the
driver of the following vehicle had been negligent but that the negligence was not the proximate
cause was consistent with the jury charge and could have resulted from the jury’s conclusion that
the accident was caused by the plaintiff stopping short.
C. CROSS OVERS
A very winnable argument for us can be made when the plaintiff is in a vehicle, as a passenger or
driver, which crosses over divider lines or lanes and plows head on into our client. A recent,
leading and instructive case in this area is Williams v Econ 633 NYS2D 392 (2 AD 1995) which
observes: "It is axiomatic that a driver is not required to anticipate that an automobile going in
the opposite direction will cross over into oncoming traffic ( see, Tenebaum v. Martin 516
NYS2D 741.) A cross-over scenario, as presented in this case, presents an emergency situation
and the actions of a driver presented with such a sudden occurrence must be judged in that
context (see, Glick v City of New York, 595 NYS2D 560).
D. CHAIN COLLISIONS
Another very winnable situation occurs when our vehicle is lawfully stopped and then is struck
from behind and pushed into the plaintiff’s vehicle, or plaintiff’s vehicle is pushed into it. See for
example Smith v Cafiero 610 NYS2d 76 (2 AD 1994), a case which involved a four-vehicle
collision. The Appellate Division held that the actions of the defendant were not negligent with
respect to plaintiff and were not the proximate cause of the injuries suffered by the plaintiff.
E. DOG BITES
The most common defense to a Dog bite case stems from a showing that the owner of the dog
did not know, and should not have known that the dog had "viscious propensities" and was likely
to bite a person. For example see Vavosa v Stiles 632 NYS2D 791 (1 AD 1995) which discusses
this area of law, observing, "Before the owner of a domestic animal can be held strictly liable for
an injury inflicted by the animal, the plaintiff must establish that the animal had vicious
propensities and that the owner had or reasonably should have had knowledge thereof (see,
Arbegast Board of Education, 65 NY2d 161...Ochacher v. Jamaica Bay Riding Academy, 608
NYS2d 449.) Generally this propensity can be shown by a previous bite, growling, leaping or
attempts to bite.
F. TRIVIAL DEFECT
If a plaintiff trips and falls over something which is insignificant in the general scheme of things,
for instance a tiny crack or difference in height on a sidewalk slab, a defense can be raised that
the defect was trivial. See for example Guerrieri v. Summa 598 NYS 2d 4 (2 AD 1993),
concerning the diminimus nature of a metal strip serving as a foul line for dart games in a bar.
G. SPECIAL USE
In connection with sidewalk or driveway cases, the general rule is that an owner of an abutting or
adjoining property will not have liability absent some "Special Use" where the accident occurred.
See for example LaPorta v Thompson 577 NYS2d 174 (3 AD 1991) concerning the duty of
adjacent building owners to maintain a raised asphalt ramp extending from the curb of a
municipal sidewalk at the end of their common driveway, where the ramp was constructed to
enable vehicles to enter the common driveway. Driveways and cuts in the sidewalk, as well as
sidewalk vaults are common special use situations. See also Hughes v City of New York 236 NY
2D 446, 4a Warren’s Negligence, Driveways, s 1.09 at 341 [3d ed.]
H. SNOW AND ICE
Liekwise an abutting premises homeowner will not be responsible for falls occasioned by snow
and ice unless they attempt to clear the snow and ice and make the condition worse by their
doing so, often by creating some sort of a melting and refreezing situation. See for example
Fezza v Rogers 563 NYS2D 225 (3 AD 1990), which observes "An owner of adjoining property
is not liable solely because the property abuts a public sidewalk where the injury occurred (see,
Appio v City of Albany, 534 NYS2D 811) Liability may inure to the abutting landowner if he
creates the dangerous condition which causes the accident or causes the condition to occur
because of some special use of the sidewalk (See Du Pont v Town of Horseheads, 558 NYS2D
277.)
XII RENEW AND REARGUE
Motions to Renew and motions to Reargue are often spoken about in the same breath and
frequently confused with one another. They are similar in that they both seek to come back and
take another bite at the same apple, to convince the Court to change its mind about a decision
previously made on a motion.
A. RENEWAL
A motion to renew is based upon new material not available for consideration by the Court
previously. Capasso v Capasso 477 NYS2D 155 (1 AD 1984). Generally a motion to renew must
be based upon additional material facts and the proponent of the motion should offer a valid
excuse for not submitting the additional information upon the original application. Nutting v
Associates in Obstetrics and Gynecology, 515 NYS2D 808 (2 AD 1985). Generally a motion to
renew must be based upon newly discovered material facts or evidence which existed at the time
the prior motion was made, but were unknown to the party now seeking renewal. A valid excuse
must be presented as to why the new information was not previously submitted. Matter of Hones
v Marcy 522 NYS2D285 (3 AD 1987). There is some authority, however, that builds some
flexibility into the requirement for newly discovered material. Esa v NY Property Insurance
Underwriting Assoc. 453 NYS2D 247 (2 AD 1982). CPLR 2221 controls this motion and
provides that usually the renewal motion must be referred to the judge who decided the original
motion, especially if the relief sought is the same. Osserman v Osserman 460 NYS2D 355.There
are exceptions to this, notably where the original decision was not final on the merits and gave
leave to resubmit the motion when supported by proper papers. Best v New York City Transit
Authority 449 NYS2D 803 (2 AD 1982)
B. REARGUMENT
Generally a motion for reargument is addressed to the discretion of the Court. It is designed to
afford a party an opportunity to establish that the Court overlooked or misapprehended the
relevant facts, or misapplied any controlling principle of law. Its purpose is not to serve as a
vehicle to permit the unsuccessful party to argue once again the very questions previously
decided. Will of McDonald 530 NYS2D 453. Flynn v Town of North Hempstead 451 NYS2D
352. CPLR provides that the motion should be heard by the same judge whose original order is
challenged. Gajewski v Gajewski 419 NYS2D 362 (4 AD 1979). There is also a time constraint
on a Motion to Reargue, that is the motion must be made before the expiration of the time in
which to appeal from the determination of the original motion. Willimson v Shang 423 NYS2D
767 (4 AD 1979) Foley v Roche 418 NYS2D 289 (2 AD 1980).
A discussion concerning a comparison of motions to renew and motions to reargue may be found
in 300 West Realty Co. v City of New York 471 NYS2D 858 (1 AD 1984).
XIII STRIKE NOTE OF ISSUE
Details concerning this practice are outlined in the Section dedicated to Note of Issue reviews.
Generally once a Note Of Issue and Certificate of Readiness have been received, the attorney has
20 days within which to move to Strike. Incorrect statements contained in the Certificate of
Readiness to the effect that there are no outstanding requests for discovery justify striking the
case from the trial calendar. Arroyo v City of New York 445 NYS2D 753 (1 AD 1982).