Supreme Court of the State of New York
APPELLATE DIVISION
Fourth Judicial Department


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


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 in which poor person relief is requested, motions in matters in which poor person relief has been granted, motions made by an Attorney for the Child, or motions with respect to a criminal appeal.



How many copies of motion papers are required?

The originals of all submissions must be filed, together with proof of service upon all parties entitled to notice.



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. In computing the notice period, the date upon which service is made shall not be included (see General Construction Law § 20).

top



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

All motions initiated by notice of motion must be filed with the clerk at least one week before the return date. Answering papers with respect to a motion must be filed no later than 4:00 P.M. on the business day preceding the return date.



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 notice of motion, supporting affidavit(s), and proof of service of the motion on all parties, a copy of the notice of appeal or other document which first invoked the jurisdiction of the court, with proof of filing and proof or admission of service and, a copy of the order or judgment being appealed, along with the court’s decision, if any (see 22 NYCRR 1250.4 [a], 1000.4 [a]).



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 1250.4 [a] [8]).

top

SPECIFIC MOTIONS



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 setting forth good cause for the vacator of the dismissal, an intent to perfect the appeal within a reasonable time, and sufficient facts to show that the appeal has merit (see 22 NYCRR 1250.10 [c]).



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 order and motions papers and the filing fee ($45) in the Clerk’s Office.

September 2018




top