Article 22. Stay, Motions, Orders and Mandates

STAY, MOTIONS, ORDERS AND MANDATES

The Sections of Article 22.:

CPLR Article 22 motions orders

NY CPLR § 2201. STAY

Except where otherwise prescribed by law, the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just.

NY CPLR § 2211. APPLICATION FOR ORDER; WHEN MOTION MADE

A motion is an application for an order.  A motion on notice is made when a notice of the motion or an order to show cause is served.

NY CPLR § 2212. WHERE MOTION MADE, IN SUPREME COURT ACTION

(a) Motions on notice.  A motion on notice in an action in the supreme court shall be noticed to be heard in the judicial district where the action is triable or in a county adjoining the county where the action is triable.  Unless statute, civil practice rule or local court rule provides otherwise, the motion shall be noticed to be heard before a motion term or, upon order to show cause granted by a justice, before that justice out of court.

(b) Ex parte motions.  A motion in an action in the supreme court that may be made without notice may be made at a motion term or to a justice out of court in any county in the state.

(c) Motions before a county court or judge.  The chief administrator of the courts may by rule provide for the hearing of motions on notice or ex parte motions in an action or proceeding in the supreme court by a term of the county court or a county judge in the county in which venue is laid during periods in which no supreme court trial or special term is in session in the county.

(d) Rules of the chief administrator of the courts.  The chief administrator may by rule exclude motions within a department, district or county from the operation of subdivisions (a), (b) and (c) of this section, provided, however, that the practice in counties within the city of New York shall be uniform.

NY CPLR § 2213. WHERE MOTION MADE, IN COUNTY COURT ACTION

(a) Ex parte motions.  A motion in an action in a county court that may be made without notice may be made before a motion term of the county court or before the county judge out of court in any county in the state.

(b) Motions that may be made before the supreme court or a justice thereof.  When no motion term is being held and there is no county judge available within the county, any motion in an action in a county court, whether or not on notice, may be made or noticed to be heard before a motion term of the supreme court or, upon order to show cause granted by a justice of the supreme court, before such justice out of court, in the judicial district where the action is triable or in a county adjoining the county where the action is triable, except a motion under article forty-four or a motion for an order that would dispose of the action, in whole or in part, in any manner other than by settlement under section 1207 .

(c) The chief administrator of the courts may by rule exclude motions from the operation of this section within a department, district or county.

NY CPLR RULE RULE 2214. MOTION PAPERS; SERVICE; TIME

(a) Notice of motion.  A notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor.  Relief in the alternative or of several different types may be demanded.

(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 and any notice of cross-motion, with supporting papers, if any, shall be served at least seven days before such time if a notice of motion served at least sixteen days before such time so demands;  whereupon any reply or responding affidavits shall be served at least one day before such time.

(c) Furnishing papers to the court.  Each party shall furnish to the court all papers served by that party.  The moving party shall furnish all other papers not already in the possession of the court necessary to the consideration of the questions involved.  Except when the rules of the court provide otherwise, in an e-filed action, a party that files papers in connection with a motion need not include copies of papers that were filed previously electronically with the court, but may make reference to them, giving the docket numbers on the e-filing system.  Where such papers are in the possession of an adverse party, they shall be produced by that party at the hearing on notice served with the motion papers.  Only papers served in accordance with the provisions of this rule shall be read in support of, or in opposition to, the motion, unless the court for good cause shall otherwise direct.

(d) Order to show cause.  The court in a proper case may grant an order to show cause, to be served in lieu of a notice of motion, at a time and in a manner specified therein.  An order to show cause against a state body or officers must be served in addition to service upon the defendant or respondent state body or officers upon the attorney general by delivery to an assistant attorney general at an office of the attorney general in the county in which venue of the action is designated or if there is no office of the attorney general in such county, at the office of the attorney general nearest such county.

NY CPLR RULE RULE 2215. RELIEF DEMANDED BY OTHER THAN MOVING PARTY

At least three days prior to the time at which the motion is noticed to be heard, or seven days prior to such time if demand is properly made pursuant to subdivision (b) of rule 2214 , a party may serve upon the moving party a notice of cross-motion demanding relief, with or without supporting papers;  provided, however, that:

(a) if such notice and any supporting papers are served by mailing, as provided in paragraph two of subdivision (b) of rule 2103 , they shall be served three days earlier than as prescribed in this rule;  and

(b) if served by overnight delivery, as provided in paragraph six of subdivision (b) of rule 2103 , they shall be served one day earlier than as prescribed in this rule.  Relief in the alternative or of several different types may be demanded;  relief need not be responsive to that demanded by the moving party.

NY CPLR RULE RULE 2217. PRIOR MOTION; EX PARTE MOTION; TRANSFER OF MOTION

(a) Prior motion.  Any motion may be referred to a judge who decided a prior motion in the action.

(b) Affidavit on ex parte motion.  An ex parte motion shall be accompanied by an affidavit stating the result of any prior motion for similar relief and specifying the new facts, if any, that were not previously shown.

(c) Transfer of motion.  If a motion is made to a judge who is or will be for any reason unable to hear it, it may be transferred by order of such judge or by written stipulation of the parties to any other judge to whom it might originally have been made.

(d) Rules of the chief administrator of the courts.  The chief administrator may by rule exclude motions within a department, district or county from the operation of subdivisions (a) and (c) of this rule.

NY CPLR § 2218. TRIAL OF ISSUE RAISED ON MOTION

The court may order that an issue of fact raised on a motion shall be separately tried by the court or a referee.  If the issue is triable of right by jury, the court shall give the parties an opportunity to demand a jury trial of such issue.  Failure to make such demand within the time limited by the court, or, if no such time is limited, before trial begins, shall be deemed a waiver of the right to trial by jury.  An order under this rule shall specify the issue to be tried.

NY CPLR RULE RULE 2219. TIME AND FORM OF ORDER

(a) Time and form of order determining motion, generally.  An order determining a motion relating to a provisional remedy shall be made within twenty days, and an order determining any other motion shall be made within sixty days, after the motion is submitted for decision.  The order shall be in writing and shall be the same in form whether made by a court or a judge out of court.  An order determining a motion made upon supporting papers shall be signed with the judge’s signature or initials by the judge who made it, state the court of which he or she is a judge and the place and date of the signature, recite the papers used on the motion, and give the determination or direction in such detail as the judge deems proper.  Except in a town or village court or where otherwise provided by law, upon the request of any party, an order or ruling made by a judge, whether upon written or oral application or sua sponte, shall be reduced to writing or otherwise recorded.

(b) Signature on appellate court order.  An order of an appellate court shall be signed by a judge thereof except that, upon written authorization by the presiding judge, it may be signed by the clerk of the court or, in his absence or disability, by a deputy clerk.

NY CPLR RULE RULE 2220. ENTRY AND FILING OF ORDER; SERVICE

(a) Entry and filing.  An order determining a motion shall be entered and filed in the office of the clerk of the court where the action is triable, and all papers used on the motion and any opinion or memorandum in writing shall be filed with that clerk unless the order dispenses with such filing.  When a statute or civil practice rule requires such filing and entry in a county other than that in which the order was made, the party prevailing on the motion shall file the order and the papers used on the motion with the proper clerk after receiving them.  If a party fails to file any papers required to be filed under this subdivision, the order may be vacated as irregular, with costs.

(b) Service.  Service of an order shall be made by serving a copy of the order.

NY CPLR RULE RULE 2221. MOTION AFFECTING PRIOR ORDER

(a) A motion for leave to renew or to reargue a prior motion, for leave to appeal from, or to stay, vacate or modify, an order shall be made, on notice, to the judge who signed the order, unless he or she is for any reason unable to hear it, except that:

  1. if the order was made upon a default such motion may be made, on notice, to any judge of the court;  and
  2. if the order was made without notice such motion may be made, without notice, to the judge who signed it, or, on notice, to any other judge of the court.

(b) Rules of the chief administrator of the courts.  The chief administrator may by rule exclude motions within a department, district or county from the operation of subdivision (a) of this rule.

(c) A motion made to other than a proper judge under this rule shall be transferred to the proper judge.

(d) A motion for leave to reargue:

  1. shall be identified specifically as such;
  2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion;  and
  3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry.  This rule shall not apply to motions to reargue a decision made by the appellate division or the court of appeals.

(e) A motion for leave to renew:

  1. shall be identified specifically as such;
  2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination;  and
  3. shall contain reasonable justification for the failure to present such facts on the prior motion.

(f) A combined motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought.  The court, in determining a combined motion for leave to reargue and leave to renew, shall decide each part of the motion as if it were separately made.  If a motion for leave to reargue or leave to renew is granted, the court may adhere to the determination on the original motion or may alter that determination.

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NY CPLR RULE RULE 2222. DOCKETING ORDER AS JUDGMENT

At the request of any party the clerk shall docket as a judgment an order directing the payment of money, including motion costs, or affecting the title to, or the possession, use or enjoyment of, real property, provided, however, that where the clerk maintains a section and block index, an order affecting the title to, or the possession, use or enjoyment of, real property may be entered in such index in lieu thereof.

NY CPLR RULE RULE 2223. DUTIES OF OFFICER RECEIVING MANDATE

An officer to whom a mandate is delivered to be executed shall:

  1. execute the mandate according to its command;
  2. give without compensation to the person delivering the mandate, if requested, a written receipt describing the mandate and specifying the day and hour of receiving it;
  3. deliver without compensation to the person served, if requested, a copy of the mandate;  and
  4. return the mandate together with his return thereon, by delivering or mailing it to the clerk’s office.
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