Motions in New York Divorce Actions
Order to Show Cause & Notice of Motion Explained
CPLR Article 22, CPLR Article 32
By J. Douglas Barics
Revised November 2015
A motion is the means by which a party to an action requests a court order which is separate from the final judgment. Written motions are governed by CPLR 2214 and are either an order to show cause or a notice of motion. Motions may be made before trial, during trial, or after the trial has concluded. Nearly all pretrial motions are written, but it is possible to make oral motions, especially if the relief sought is relatively minor. Any motion must somehow relate to the main case for something that cannot wait until trial. A motion requesting relief that is outside the scope of the pending case will be denied, as will a motion that requests something that is properly decided at trial.
Motions will almost always be made on notice to the opposing party. When a notice of motion is used, the moving side chooses the motion date and serves the opposing side with the motion papers in advance of that date. When an order to show cause is used, the court will chose the motion date, and then the order to show cause is sent to the opposing side on or before a date set by the court.
In some instances, notice may not be given of the motion, but these are the exceptions. For example, if a party cannot be found, it is permissible to make a one sided (ex parte) motion requesting alternate service of court papers. If granted, the court will authorize service of the papers, along with the ex parte order.
Temporary restraining orders are the procedural vehicle to obtain an ex parte order. They are presented as part of an order to show cause, and are temporary orders that are requested when the order to show cause is submitted. If granted, a temporary restraining order remains in place until the motion itself is decided or upon a new order issued by the court.
When a temporary restraining order is requested, the side seeking it must give notice to the other side that a T.R.O. is being sought. Twenty four hours is customary. Proof of this notice must accompany the request for the T.R.O.
If this notice cannot be given, an affidavit must also be attached explaining why the notice for the T.R.O. was not given.
1. The Components of a Written Motion
All written motions will generally consist of three sets of papers, the motion itself, which will either be a Notice of Motion an Order to Show Cause, file by the moving party. Second will be the the affirmation (or affidavit) in opposition, filed by the party opposing the motion. Third is the reply, filed in support of the motion and responding to the claims made in the affirmation in opposition. The reply on a motion should not be confused with the verified reply which is part of the pleadings. Despite the same name, they are two very different things.
(a) A motion itself will generally consists of the following:
- A notice of motion or the order to show cause, which contains the caption of the case, the court where the motion will be made, the date and time of the motion, and what the motion is seeking
- For an order to show cause only, any injunctive relief sought, including the request for ex parte court order,
- For an order to show cause only, the manner of service as ordered by the court,
- The party's affidavit, which is a sworn statement which provides the factual reasons for the motion.
- The attorney's affirmation which contains any factual statements known by the attorney. Many attorney's affirmations also include supporting case law, although technically that should be submitted as a memorandum of law.
- Any exhibits in support of the motion. Exhibits are used to help cooberate the facts stated in the movant's affidavit. (i.e. - canceled checks for proof of payment, etc.)
At least 8 days notice is required pursuant to CPLR 2214, with an additional 5 days if the motion is served by mail.
(b) The affirmation in opposition will consist of:
- The party's affidavit, which responds to the claims made in the motion. Should the party wish the court to issue an order on its behalf, a cross motion is necessary.
- Non party affidavits, if any. When a non party is outside the United States, an affirmation is allowed provided it conforms to the requirements of CPLR 2106.
- The attorney's affirmation
- Any exhibits use to support the affidavit.
(c) The reply will consist of
- An affidavit if necessary
- An affirmation if necessary
The reply is limited in scope to address only those issues raised in the affirmation in opposition.
In Supreme Court, there is a $45 filing fee for all motions and cross motions. In addition, if a judge has not yet been assigned to the case, a Request for Judicial Intervention (RJI) must be filed as well. There is no fee for filing a motion in Family Court, nor is an RJI required to assign a judge.
Note that an affidavit locks that party into testimony, and any affidavits made for a motion are often used by opposing counsel during cross examination at trial. The decision what to include in a supporting affidavit, and what to leave out, is an art in itself, and should be made by the attorney representing the party.
2. Notice of Motion
A notice of motion will contain notice of the date of the motion, the location of where the motion will be made, and the relief sought. The side making the motion picks the motion date, subject of course, to any local rules. Service of the motion must be made at least eight days prior to the return date. Service by mail is permitted, but an additional five days is added if mailing is used.
3. Order to Show Cause
An order to show cause is similar to a notice of motion, in that it can request the exact same relief as a notice of motion. It differs in that the party bringing the motion by order to show cause can submit the motion to the court before the motion is served on the other side. This is generally the only way one side can communicate with the court without the other side being present. In addition, an order to show cause can request that the court issue an temporary order before the other side responds. Order to show cause is often used when time is critical, such as when a child is in danger of being removed from the jurisdiction, or when a decision is needed faster than a notice of motion, such as temporary child support or temporary maintenance.
4. Cross Motions
A cross motion is a motion that is filed only in response to an existing motion, and is made returnable the same day. The relief sought need not be related to the initial motion. As a practical matter, time deadlines and return dates for motions are liberally granted by the court and are often expanded on consent.
5. Types of Motions and Various Relief
(a) Pendente Lite Motions
Pendente lite motions are brought to obtain temporary pre trial orders of support, custody or any other relief. As 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 visitation of 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.
A pendente lite motion which requests either child support or maintenance must include a statement of net worth as an exhibit. This is required even if the statement of net worth has been filed separately.
(b) Discovery Motions
Should a party fail to comply with discovery requests, one remedy is a motion to compel discovery. It may include an award of counsel fees for the motion. In addition, it may be used to help prove a pattern of lack of compliance which could help an award of counsel fees at trial.
Another option is a motion to preclude. This motion seeks to prevent the non complying party from offering evidence at trial. The evidence precluded can range from being limited to that which was requested in discovery to any and all evidence.
The most severe discovery motion is a request to strike the pleadings of the non complying party. This places that party in default, and ignores any answer, counterclaim or reply they may have served.
(c) Motion for Summary Judgment
After the answer to the verified complaint is served, either side has a right under CPLR 3212 to make a motion for summary judgment. While rare in matrimonial cases, it still may be used if appropriate. A summary judgment motion is a request for a judgment without a trial; the basis being there is no question of law or fact. For example, if the plaintiff is seeking child support for a 24 year old child, a motion for summary judgment would be appropriate. When deciding a motion for summary judgment, the court will view the facts in favor of the side opposing the motion.
(d) Motion to dismiss
A motion to dismiss is made under CPLR 3211. Unlike a summary judgment which may be filed only after the answer (or reply to a counterclaim) is filed, a motion to dismiss may only be made before the answer (or reply) is due.
(e) Motion to Reargue and Renew
CPLR 2221 allows a party to file a motion to renew or reargue. A motion to renew is a request for a court to reconsider a prior decision based on new evidence which was not submitted initially. A showing of why the evidence was not submitted must be made, and absent good cause, courts are reluctant grant this relief. Either side may appeal from an order determining a motion to renew under CPLR 5701(a)(2)(viii).
A motion to reargue is a request for a court to reconsider a prior decision, essentially acting as a mini appeal before the same judge. 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 it is granted an appeal may be taken, see CPLR 5701(a)(2)(viii).
Both a motion for renew or reargument should be made by order to show cause. See Application of Central States Paper & Bag Co., Inc., 132 NYS2d 69, 72 [Sup Ct, NY County 1954], aff'd mem 284 AD 841 [1st Dept 1954]. However, courts will not strictly adhere to this rule and commonly allow a notice of motion to suffice. See Alta Apts. LLC v Wainwright 2004 NY Slip Op 50797(U) (2004) for a good discussion on motions to reargue and renew.
(f) Post Judgment Modifications and Enforcement
If a modification or enforcement of child support or spousal maintenance is sought in Supreme Court, a motion is the means by which it is done. Many judges require that post judgment motions be filed by order to show cause and not notice of motion.
If a modification or enforcement is filed in Family Court, it is done by a verified petition.
(g) 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 discretionary stay may be sought under CPLR 5519(c) either at the appellate or trial level.
(h) 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).
6. 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.
7. 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.
No appeal as of right lies from an order arising from a Family Court motion. CPLR 5702 provides that for courts other than Supreme and County Court, appeals may be taken in accordance with the controlling court act, which for Family Court is FCA 1112, which provides that the only appeals which may be taken as of right are those arising from a final order of disposition. Any non final orders may be appealed only by permission from the Appellate Division, which must be requested by a motion filed in the Appellate Division. Unlike Supreme Court, Family Court is not authorized to grant leave to appeal its own orders. FCA 1112, CPLR 5702.
The article "Motions in New York Divorce Actions: Order to Show Cause & Notice of Motion Explained" is provided as a free educational service by J. Douglas Barics, attorney at law, and does not constitute legal advice. Legal advice may only come from a qualified attorney who is familiar with the facts and circumstances of a specific case.
If you have any questions or comments, please feel free to contact Mr. Barics at email@example.com or (631) 864-2600. For more articles and information, please visit www.jdbar.com.
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J. Douglas Barics, Esq. – Divorce, family, matrimonial, trial and appeals lawyer in Long Island, New York.