How to Ask the Court for Something (motions and orders to show cause)

If you or the other side want to ask the court to do something in a case, you must ask in written court papers called a Motion or an Order to Show Cause. The other side then has a chance to write court papers too. Then everyone comes to court and the Judge decides what to do. You can’t call the court to ask for something. There are different rules for making motions and orders to show cause. Some courts, like the Supreme Court, charge a court fee and require another fee and form if a Judge needs to be assigned to the case.

A motion or order to show cause can be used for many reasons, like:

• Making one side do what he or she agreed to do;
• Asking for more time to do what you agreed to do;
• Fixing mistakes in a Stipulation;
• Explaining why you missed your court date or didn’t file an Answer;
• Changing the terms of a court order;
• Asking the court to dismiss the case;
• Forcing the other side to give you discovery information; or
• Bringing the case back to court for any reason.

For more information about the different types of motions and orders to show cause, read Common Examples of Motions.

See CPLR 2214.

 

Motion or Order to Show Cause?

Both a motion and an order to show cause are used to ask the court to do something in a case. But, a motion has strict rules about the number of days it can be served before the court date. Many people find it easier to make an order to show cause because the court sets the court date and tells you how to deliver the papers to the other side.

An order to show cause is good to use in an emergency situation. It can often get you into court faster than a motion. It can ask the court for immediate help until the case is back in court, such as stopping a sale of a home, or the taking of money out of your bank account. This is called a stay or a temporary restraining order.

Some people may be afraid that the Judge won’t sign the order to show cause but still want a chance to see the Judge and argue their side. In this case, a motion is a better choice.

 

Making a Motion

Motion papers consist of a top page called a Notice of Motion, followed by an Affidavit in Support of the motion, and copies of any documents that the moving side thinks would help the Judge make a decision. The party making the motion is called the movant.

The Notice of Motion tells the other side the date the motion will be heard by the court. This is sometimes called the return date, or the date the motion is returnable. This date is chosen by the movant. Choosing the date is the hardest part of making the motion. The Court Clerk can help you choose the date. It matters if the papers will be delivered to the other side in person or by mail. This date must give the other side at least 8 days of notice. But, if the motion will be delivered by mail, the date must give the other side at least 13 days of notice.

If the movant wants copies of the other side’s opposition papers (and any notice of cross-motion) at least 7 days before the hearing date to be able to review them and reply to them, the movant chooses a date that gives the other side at least 16 days of notice. If the motion will be delivered by mail, the hearing date should be at least 21 days after the motion papers are mailed.

The date must be a day of the week that the court is available for motions. Beware, not every court in New York State hears motions every day of the week. The Notice of Motion must also list the full address of the courthouse, the courtroom number and time. The court locater box can help you contact the court if you have questions about the date, address, courtroom and time.

The Notice of Motion must also tell the court and the other side what the movant is asking the court to do.

 

Making an Order to Show Cause

An Order to Show Cause consists of a top page called an Order to Show Cause (OSC), followed by an Affidavit in Support of the OSC, and copies of any documents that the moving side (movant) thinks would help the Judge make a decision. The OSC tells the court and the other side what the movant wants the Judge to do. If the movant wants the Judge to order something right away that can’t wait until the court date, the OSC must say this too. For example, the OSC can ask the Judge to stop an eviction until the court date. This is called a stay.

The OSC is given to the court for a Judge to review and sign. If the Judge signs it, the Judge picks the court date and fills it in on the OSC. The Judge also fills in how you must deliver the OSC to the other side. The Judge may cross-out or change the part that asks for help before the next court date.

The movant may have to wait for the OSC to be signed, or the Clerk may say to come back. If the Judge does not sign the OSC, the Judge might write on the OSC what is missing or needs to be done before he or she will sign it. If it can be fixed, the movant can make another OSC. If the movant thinks the Judge has made a mistake, he or she can go to a higher court and have the judge’s decision reviewed. The Court Clerk or Court Help Center has information.

Some courts give out OSC forms or make the OSC when the movant doesn’t have a lawyer. There are also some DIY Form programs that make the court papers.

 

Affidavit in Support

Both a motion and an order to show cause must have an Affidavit attached. An Affidavit in Support is a sworn statement signed in front of a notary public that tells the court why a motion or order to show cause should be granted. The movant can file as many affidavits from as many people that he or she thinks will help the Judge decide to do what he or she wants. The Affidavit should say:

• what is being asked for and why
• the facts about the case
• whether or not the movant has ever asked the court for this before, and if so, what happened and why the movant is asking again.

Attach copies of any important papers that you talk about in your Affidavit to the motion or OSC. These are called Exhibits. The Exhibits should help explain and support your motion or OSC. Mark each exhibit at the bottom of the page, as Exhibit A, Exhibit B, and so on. Exhibits are not returned to you.

Make copies of the papers so that there is a set for every party. If it is an OSC, the copies must be made after the Judge signs it. The copies must be delivered to the other side. The court keeps the original papers and proof that the papers were delivered to the other side. See How Legal Papers are Delivered. Make sure you keep a copy for yourself.

 

Opposition Papers

The other side can tell the movant and the court why he or she thinks that the movant should not get what he or she wants. This is done in written papers called an Affidavit in Opposition. The movant can limit the amount of time the other side has to file opposition papers. The notice of motion will say when.

If the other side does not submit opposition papers and/or doesn’t come to court to argue against the court granting the motion or OSC, the Judge may decide to grant it. If opposition papers are filed, the Judge will read them before making a decision.

Any important papers talked about in the Affidavit should be attached to the Affidavit in Opposition. The papers should be copied and delivered to the other side and the court. The court gets the original opposition papers with your notarized signature at the end of the Affidavit, and proof that the papers were delivered to the other side. See How Legal Papers are Delivered.

 

Reply Papers

The movant can answer the opposition papers by making an Affidavit in Reply. The reply papers say anything that answers what was said in the opposition papers. A Reply Affidavit must be delivered to the other side and the court gets the original and proof that the papers were delivered. If there is not time to serve the reply papers, they can be brought to the courtroom on the court date. If the movant didn’t have time to make reply papers and thinks it is important, he or she can ask the court to postpone the case to another day for time to reply. The Judge may or may not allow this.

 

Cross Motions

The party opposing a motion or OSC can also make a motion or OSC asking the court for something that he or she wants. This is called a cross-motion.

A party served with an OSC can also ask the court for something by making his or her own OSC. The party can ask the Court Clerk to put the OSCs on the same court date. If the OSC is made far enough before the court date, both OSCs can be in front of the Judge at the same time.

A cross-motion can be made for the same day as the court date for a motion. Instead of making an Affidavit in Opposition, a Notice of Cross-Motion is used with an Affidavit in Support of the Cross-Motion and in Opposition to the Motion. The Notice of Cross-Motion tells the court and the movant that the cross-motion will be heard at the same address, on the same date, same room and same time as the movant’s Notice of Motion. The cross-motion must be served on all parties at least three days before the motion date, and should be filed with the court as soon as possible to make sure that it is put on the court’s calendar. A cross-motion must be made seven days before the motion date if the motion was served at least 16 days before the court date. If the papers are delivered by mail, add three days and serve the cross-motion at least 10 days prior to the court date. The rules for delivering the cross-motion are the same as for delivering opposition papers.

The other side can make papers opposing the cross-motion.

 

Going to Court

In most cases, the parties must go to court on the date the OSC or motion is scheduled to be heard. Sometimes, the court does not make the parties come to court. And, sometimes, after the court reads the motions papers, the Court Clerk calls the parties and asks them to come in to talk about the motion. Use the court locator box to find your court and ask the Court Clerk how this is done in your court. If you are not sure what to do, always go to court on the court date.

If the movant doesn’t show up, the OSC or motion will most likely be denied. If the other side doesn’t show up to oppose the OSC or motion, the motion may be granted. When a motion is granted because the other side did not show up, this is called granted on default.

Leave extra time to get to the courtroom since everyone goes through security before going in the building. Bring copies of the papers and any papers and affidavits that haven’t been given to the court yet. There may be a calendar posted outside the courtroom that lists all the cases that will be called that day. Each case has a number. You can find your case to see when you will be called. Sit quietly and wait for your case to be called. There are many different people in the courtroom who work for the court. In many courts, the parties will have a chance to tell their side of the motion to the Judge or the judge’s court attorney. When this is done in front of the judge, it is called oral argument. You can’t speak to the Judge if the other side is not there too.

If a party is not ready to talk about the motion or OSC with the court, or needs more time to make papers, he or she can ask the court to postpone the case to another date. This is called an adjournment. If a party doesn’t agree to postpone the case, he or she can tell the Judge the reason and the Judge will decide. If an adjournment is still granted, a party can ask the court to write on the case that this will be the last adjournment. This is called marking a case final.

You and the other side may want to talk to see if you can agree on how the motion or OSC can be taken care of or how the whole case can be settled. See Settlements for more information.

 

Decisions

If the motion or OSC can’t be settled, the Judge will make a decision. Sometimes, the Judge makes a decision right away. If not, the Judge has 60 days by law to decide the motion. Some Judges will mail you a copy of the decision if you give them a self-addressed stamped envelope. Bring one to court. You can find decisions for some courts by checking calendar information at e-courts. If not, call the Court Clerk or go to the courthouse to get a copy of the decision.

In order for the winning party to start enforcing the judge’s decision, it must first be entered by the clerk. If a decision is entered it has a date stamped on it by the Court Clerk. Once the decision is entered, the winning party should mail a copy of the decision with a form called Notice of Entry to the losing party. File a copy of the Notice of Entry and proof of service with the Court Clerk. Delivering the Notice of Entry starts the loser’s time to appeal ticking.

If a party is unhappy with the judge’s decision and thinks that the Judge made a legal or factual mistake, the party can appeal. There are time limits on filing an appeal if the decision with Notice of entry has been served and filed.