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FREQUENTLY ASKED QUESTIONS

MOTION PRACTICE

GENERALLY


Is there a filing fee for motions?

How many copies of motion papers are required?

How do I determine the appropriate return date?

When must I file the motion? What is the deadline for the filing of a response to the motion by the other parties?

What papers must I submit in support of my motion?

Who can serve my motion papers?

Will I be permitted to argue my motion?


SPECIFIC MOTIONS


How do I obtain an extension of the 60-day deadline for perfecting my appeal?

My appeal was dismissed as abandoned; what do I need to do to reinstate the appeal?

I need to bring a motion before the Court by order to show cause; what should I do?




GENERALLY



Is there a filing fee for motions?

Yes. The fee is $45 (see CPLR 8022 [b]) payable by attorney check, certified check or money order made payable to the Appellate Division, Fourth Department (no cash, personal checks or credit cards are accepted). There is no fee for motions for poor person relief or for motions in which poor person relief is also requested.



How many copies of motion papers are required?

The Court requires the original, one copy and proof of service on the opposing party.



How do I determine the appropriate return date?

Unless otherwise provided by statute or directed by the Court, motions are returnable on any Monday, or the first business day of the week if Monday is a holiday, with adequate notice to opposing parties; at least 8 days’ notice is required if motions are personally served; 13 days’ notice is required if motions are served by regular mail; and 9 days’ notice is required when motions are served by overnight delivery (22 NYCRR 1000.13 [a] [1], [2]). In computing the notice period, the date upon which service is made shall not be included (see General Construction Law § 20).

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When must I file the motion? What is the deadline for the filing of a response to the motion by the other parties?

All papers in support of or in opposition to a motion must be filed no later than 5:00 P.M. on the Friday preceding the return date. Papers may be filed by fax (585-530-3247) provided that the original papers are mailed on that date (22 NYCRR 1000.13 [a] [4]).



What papers must I submit in support of my motion?

Except as otherwise authorized by statute or rule or by order of this Court or a Justice of this Court, the papers on a motion or cross motion shall consist of a notice of motion, supporting affidavit(s), proof of service on all parties, 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 (see 22 NYCRR 1000.13 [a] [5]).



Who can serve my motion papers?

Except where otherwise prescribed by law or order of this Court, papers may be served by any person who is not a party and is eighteen years of age or older (see CPLR § 2103 [a]).



Will I be permitted to argue my motion?

No. Oral argument is not permitted (see 22 NYCRR 1000.13 [a] [6]).

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SPECIFIC MOTIONS



How do I obtain an extension of the 60-day deadline for perfecting my appeal?

A motion to extend the deadline is unnecessary; the appeal is subject to dismissal on motion and will not be automatically dismissed. Should the respondent move to dismiss the appeal, you should file an opposing affirmation or affidavit to request an extension.



My appeal was dismissed as abandoned; what do I need to do to reinstate the appeal?

A motion to vacate the dismissal of the appeal may be filed within one year from the date of dismissal. The Court requires, in support of the motion, an affidavit demonstrating a reasonable excuse for the delay in perfecting the appeal and an intent to perfect within a reasonable time, and setting forth sufficient facts to show that the appeal has merit (see 22 NYCRR 1000.13 [g]).



I need to bring a motion before the Court by order to show cause; what should I do?

      - prepare a proposed order and supporting papers;

      - call the Clerk’s Office and request the name of the Justice assigned to motions for that week;

      - contact the chambers of the assigned Justice and schedule an appointment; notify the other parties;

      - file your motion papers with the assigned Justice, including proof of service upon the other parties;

      - if the order is signed, file the original, one copy and the filing fee ($45) in the Clerk’s Office.

May 24, 2010




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