N.Y. Comp. Codes R. & Regs. tit. 22 § 1000.13

Current through Register Vol. 46, No. 16, April 17, 2024

Section 1000.13 - Motions

(a) General procedures.

(1) Return date. Unless otherwise provided by statute or by order of this court or justice of this court, a motion to this court shall be returnable at 10:00 a.m. on any Monday (or, if Monday is a legal holiday, the first business day of the week), regardless of whether the court is in session. A motion shall not be adjourned except upon the written consent or stipulation of the moving party or by order of this court.

(i) A motion for permission to appeal shall be made returnable on a Monday (or, if Monday is a legal holiday, the first business day of the week) at least eight days but not more than 15 days after the notice of motion is served (see CPLR 5516).

(2) Notice and service of papers. A notice of motion and supporting papers shall be served with sufficient notice to all parties, as set forth in the CPLR. In computing the notice period, the date upon which service is made shall not be included (see General Construction Law, section 20 ).

(i) When motion papers are personally served, at least eight-days notice shall be given (CPLR 2214[b]).

(ii) When motion papers are served by regular mail, at least 13-days notice shall be given (CPLR 2103[b][2]).

(iii) When motion papers are served by overnight delivery service, at least nine-days notice shall be given (CPLR 2103[b][6]).

(iv) When motion papers are served by electronic means, there shall be compliance with CPLR 2103(b)(5), and at least eight days notice shall be be given.

(3) Cross motions. Cross motions shall be made returnable on the same date as the original motion. A cross motion shall be served either personally or by overnight delivery service at least four days before the return date.

(4) Filings of papers.

(i) All papers in support of or in opposition to a motion or cross motion shall be filed in the clerk's office no later than 5:00 p.m. on the Friday preceding the return date. When Friday is a legal holiday, papers shall be filed no later than 5:00 p.m. on the Thursday preceding the return date.

(ii) Filing is accomplished by the physical delivery of the necessary papers to the clerk's office.

(iii) A submission to the clerk's office by electronic means will be accepted, provided that it otherwise complies with these rules and the original papers and one copy thereof are sent to the clerk's office on the date of the electronic transmission.

(5) Necessary papers.

(i) Except as otherwise authorized by statute or rule or by order of this court or justice of this court, the papers on a motion or cross motion shall consist of a notice of motion (CPLR 2214), supporting affidavit(s), proof of service on all parties (CPLR 306), a copy of the notice of appeal or order of transfer with proof or admission of service, a copy of the order or judgment being appealed, along with the court's decision, if any, and a copy of any prior order of this court.

(ii) When an appellate docket number has been assigned to a matter by the clerk's office, a notice of motion or cross motion and any supporting affidavits shall conspicuously bear that number.

(iii) An original and one copy of all papers shall be filed.

(iv) Incomplete filings are not acceptable. A failure to comply with the rules for the submission of a motion shall result in the rejection of the motion papers.

(6) Oral argument. Oral argument of motions is not permitted.

(b) Orders to show cause and applications pursuant to CPLR 5704.

(1) Orders to show cause. When a moving party seeks a temporary stay or other emergency interim relief pending the return and determination of a motion, the motion may be brought by an order to show cause. The order to show cause shall be directed to a justice of this court with chambers in the judicial district from which the appeal arises. The party bringing the order to show cause must give reasonable notice to all other parties of the date and time when, and the location where, the order to show cause will be presented to a justice of this court, and all counsel may be present upon the presentation of the order to show cause. When the presence of counsel for an adverse party cannot be obtained, the papers in support of the order to show cause shall include an affidavit setting forth the manner in which reasonable notice has been given and an explanation for the failure to obtain the presence of adverse counsel. Unless otherwise ordered by a justice of this court, all papers in opposition to a motion brought by an order to show cause shall be served and filed in the clerk's office no later than noon of the return date set in the order to show cause.

(i) A party commencing an original proceeding (see section 1000.9 of this Part) by an order to show cause shall remit the filing fee in advance, as required by CPLR 8022.

(2) CPLR 5704(a). An application for relief pursuant to CPLR 5704(a) shall be made using the procedures for an order to show cause set forth in paragraph (1) of this subdivision.

(c) Stays of judgments in criminal proceedings (C PL 460.50).

(1) Initial application. Unless otherwise ordered by a justice of this court, an application by a defendant or the attorney for a defendant for a stay of judgment pending appeal may be made by motion on notice, as set forth in subdivision (a) of this section, or by order to show cause, as set forth in paragraph (b)(1) of this section.

(2) Extensions. When a defendant or the attorney for a defendant seeks to extend a stay of judgment pending appeal, the application shall be made by motion on notice, as set forth in subdivision (a) of this section. The papers in support of the motion shall include an affidavit stating either that the transcript of the proceeding to be reviewed has been filed pursuant to C PL 460.70 or that the transcript has been ordered, along with an explanation for the delay in completing and filing the transcript.

(d) Stays in appeals pursuant to the Family Court Act (Family Court Act, section 1114).

(1) Initial application. Unless otherwise ordered by a justice of this court, an application for a stay pursuant to Family Court Act, section 1114 shall be made by order to show cause, as set forth in paragraph (b)(1) of this section (see also, Family Court Act, section 1114[d]).

(2) Extensions. An application to extend a stay granted pursuant to Family Court Act, section 1114 and paragraph (1) of this subdivision shall be made by motion on notice, as set forth in subdivision (a) of this section. The papers in support of the motion shall include an affidavit demonstrating reasonable efforts to obtain the transcript of the proceeding to be reviewed and otherwise explaining the delay.

(e) Dismissal for failure to perfect. A motion to dismiss for failure to perfect the appeal may be made pursuant to section 1000.12(a) of this Part. An order dismissing the appeal shall be entered, unless the appellant timely serves and files an affidavit demonstrating a reasonable excuse for the delay and an intent to perfect the appeal within a reasonable time. When an appellant has made the required showing, an order shall be entered dismissing the appeal unless the appellant perfects the appeal by a date certain and further providing that the appeal shall be dismissed without further order if appellant should fail to perfect on or before the date certain.

(f) Extension of time to perfect. In an appeal subject to dismissal pursuant to section 1000.12(b) of this Part or order of this court, a motion for an extension of time to perfect the appeal may be made on or before the date by which the appellant must perfect the appeal. In support of the motion, the appellant shall submit an affidavit demonstrating a reasonable excuse for the delay and an intent to perfect the appeal within a reasonable time.

(g) Vacate dismissal of appeal. When an appeal has been dismissed pursuant to section 1000.12(b) of this Part or an order of this court, a motion to vacate the dismissal may be made within one year of the date of the dismissal. In support of the motion, the appellant shall submit an affidavit demonstrating a reasonable excuse for the delay and an intent to perfect the appeal within a reasonable time and setting forth sufficient facts to demonstrate a meritorious appeal.

(h) Extension of time to file a brief. A motion for an extension of time to file and serve a petitioner's brief, a respondent's brief, a reply brief or, when permitted, a surreply brief or a pro se supplemental brief shall be supported by an affidavit demonstrating a reasonable excuse for the delay and an intent to file and serve the brief within a reasonable time. When an extension of time to file and serve a brief has been granted, a copy of the order granting such permission shall be filed with the brief.

(i) Extension of time to take a criminal appeal. A motion pursuant to C PL 460.30 to extend the time to take an appeal shall be macle within one year of the date on which the time to take an appeal expired. An affidavit in support of the motion shall set forth facts demonstrating that the appeal was not timely taken because of the improper conduct of a public servant, the unproper conduct, death or disability of the defendant's attorney or the inability of the defendant and the defendant's attorney to communicate about whether an appeal should be taken before the time to take the appeal expired.

(j) [Reserved]

(k) Briefs amicus curiae. A person who is not party to an appeal or proceeding may make a motion to serve and file a brief amicus curiae. An affidavit in support of the motion shall briefly set forth the issues to be briefed and the movant's interest in the issues. The proposed brief may not duplicate arguments made by a party to the appeal or proceeding. When permission to submit a brief amicus curiae is granted, the person to whom it is granted shall file 10 copies of the brief with proof of service of two copies on each party. A person granted permission to appear amicus curiae shall not be entitled to oral argument.

(l) Admission pro hac vice on a particular matter. An attorney and counselor-at-law or the equivalent may move for permission to appear pro hac vice with respect to a particular matter pending before this court (see section 520.11[a] [1] of this Title). An affidavit in support of the motion shall state that the attorney and counselor-at-law is a member in good standing in all the jurisdictions in which the attorney and counselor-at-law is admitted to practice and that the attorney is associated with a member in good standing of the New York Bar, which member shall be the attorney of record in the matter. Attached to the affidavit shall be a certificate of admission in good standing from each Bar to which the attorney and counselor-at-law is admitted.

(m) Expedite appeal. A motion to expedite an appeal or proceeding shall be supported by an affidavit setting forth with particularity the compelling circumstances justifying an expedited appeal or proceeding.

(n) Consolidation. A motion to consolidate appeals shall be supported by an affidavit setting form the appeals to be consolidated and the reasons justifying consolidation (see section 1000.4[b][2] ).

(o) Applications for leave to appeal pursuant to C PL 460.15. An application pursuant to C PL 460.15 for a certificate granting leave to appeal to this court shall be supported by an affidavit setting forth the questions of law or fact for which review is sought and stating that no prior application has been made. The applicant shall attach to the affidavit a copy of the order and decision, if any, sought to be reviewed and a copy of all papers submitted to the court whose order is sought to be reviewed. The motion shall be submitted to the court for determination by an individual justice thereof.

(p) Reargument and leave to appeal to Court of Appeals.

(1) Time of motion. A motion for reargument of or leave to appeal to the Court of Appeals from an order of this court shall be made within 30 days of service of the order of this court with notice of entry. The time to make the motion shall be extended five days if the order is served by mail and by one day if the order is served by overnight delivery service.

(2) Necessary papers. Papers on a motion for reargument or leave to appeal to the Court of Appeals shall also include a notice of motion (CPLR 2214), supporting affidavit, proof of service on all parties (CPLR 306) and a copy of the order and memorandum or opinion, if any, of this court.

(3) Reargument. An affidavit in support of a motion for reargument shall briefly set forth the points alleged to have been overlooked or misapprehended by this court.

(4) Leave to appeal to Court of Appeals.

(i) An affidavit in support of a motion for leave to appeal to the Court of Appeals shall briefly set forth the questions of law sought to be reviewed by the Court of Appeals and the reasons that the questions should be reviewed by the Court of Appeals.

(ii) In a civil matter, a motion for leave to appeal to the Court of Appeals shall be determined by the panel of justices that determined the appeal.

(iii) In a criminal matter, a motion for leave to appeal to the Court of Appeals may be submitted to and shall be determined by any member of the panel of justices who determined the appeal. The affidavit in support of the motion shall state that no other application for leave to appeal to the Court of Appeals has been made.

(iv) A motion for permission to appeal shall be made returnable on a Monday (or, if Monday is a legal holiday, the first business day of the week) at least eight days but not more than 15 days after the notice of motion is served (see CPLR 5516).

(q) Withdrawal of counsel; assigned criminal appeals. An attorney assigned to perfect a criminal appeal on behalf of an indigent defendant pursuant to section 1022.11 of this Title may move, after conferring with the defendant and trial counsel, to be relieved of the assignment upon the submission of an affidavit accompanied by a brief in which the attorney states all points that may arguably provide a basis for appeal, with references to the record and citation of legal authorities. The brief must be supplied to the defendant at least 30 days before the return date of the motion (see People v. Crawford, 71 AD2d 38). Together with the motion papers and briefs, counsel shall submit the papers that would constitute the record on appeal pursuant to section 1000.3(c)(1) of this Part. If the brief is mailed to the defendant, it shall be mailed to the defendant's last known address.

(r) Other motions. A motion seeking relief not specifically provided for herein is not precluded. Any such motion shall be submitted to the clerk's office in conformity with subdivision (a) of this section.

N.Y. Comp. Codes R. & Regs. Tit. 22 § 1000.13