Civil Motions
In General
Notice of Motion
Affidavit in Support
Serving the Motion
Affidavit of Service
Filing the Motion With the Court
Opposition Papers
Making a Cross-Motion
Reply Papers
Appearing in Court
The Decision on the Motion
A motion is a written request to the court to issue an order for specific action. For example, an order could grant or force discovery, or dismiss all or part of an action. (An Order to Show Cause is a speeded up form of a motion). Motion papers tell the other side of the nature of the request and state the date, time and location where the request will be made.
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 support the request and would help the judge make a decision. Motion papers must be served on all the parties. The person serving the papers must fill out an Affidavit of Service, which must be filed together with the motion papers to place the motion on the court’s calendar. A party served with motion papers may prepare papers to oppose the motion. The moving party (the party making the motion) is then entitled to submit papers in reply to the opposing papers. On the hearing date of the motion, all parties must come to court and the judge will decide the motion.
There are strict requirements as to how to properly make a motion.
Many people find it is easier to come to court in person and fill
out an order to show cause for the relief needed. You may refer to Order to Show Cause to read about the
procedure. However, if you would like to make a motion or you have
been served with a motion and you want to oppose it, continue reading
below. You may also review the law on motions by going to CPLR
2214.
To view or print a free civil court form, you may refer to Notice of Motion. You must fill in all the information on the Notice of Motion before you serve it (otherwise your motion will be defective), including:
1. The date the motion will be heard by the court. This is sometimes called the “return date,” or the date the motion is “returnable.” The party making the motion (moving party) chooses the date the motion will be heard by the court. When you choose the date, you must pick a date that gives the other side at least 8 days of notice. If you are serving the motion by mail, you must choose a date that is at least 13 days after the motion papers are mailed.
If you want copies of the other side’s opposition papers (and any notice of cross-motion) at least 7 days in advance of the hearing date to be able to review them and reply to them, you should choose a date that gives the other side at least 16 days of notice. If you are serving the motion by mail, the hearing date should be at least 21 days after the motion papers are mailed.
You must also pick a day of the week that the civil court in your county hears motions. Go to Where and When Motions Heard to check. Make sure the day you pick is not a court holiday because the court will be closed.
2. The full address of the courthouse. You may refer to Where and When Motions Heard for the full address of the courthouse.
3. The Part, room number and time the motion will be heard by the court. Refer to Where and When Motions Heard for the correct part, room and time your motion should be heard in your county.
4. The relief you are seeking from the court. Fill in what it is you are asking the court to do.
You will need a copy of the completed Notice of Motion form for
every party and one for yourself.
A motion must also include an Affidavit. An Affidavit is a sworn statement made before a notary public which explains to the court why your request should be granted. You may submit as many affidavits from as many people as you feel are relevant to prove to the court that the request in the motion should be granted. The Affidavit should:
1. state the reason you are making your request,
2. state the relevant facts about your case,
3. state whether or not you have ever made the same request before,
4. also have copies of any relevant documents you are referring
to in your Affidavit attached to the notice of motion,
5. be signed at the bottom in front of a notary after it is filled
out and be attached to the notice of motion,
6. be copied after it is signed so that there is a set for every
party. The copies must be served
with the copies of the notice of motion and relevant documents on
all parties.
You may download a free civil court form by going to Affidavit
in Support, or you may use your own form or obtain one from
the clerk.
1. Copies of the notice of motion and supporting papers must be
served on all parties
at least eight days before the time at which the motion is noticed
to be heard by the court. Add an additional 5 days if the motion
is served by mail.
2. Papers must be served by a person who is not a party to the action
and is eighteen years of age or older.
3. If the opposing party has an attorney, the motion papers must
be served on the attorney. Service of the motion papers may be made
by delivering the papers to the attorney personally, or by mailing
the papers to the attorney.
4. After the motion papers have been served, the person who served
the papers must fill out an Affidavit of Service.
The person who serves the motion papers must fill out an Affidavit of Service. The Affidavit of Service tells the court who was served with the papers and how and when they were served. The Affidavit of Service must be sworn to in front of a notary public. You may download the appropriate free civil court form at Affidavit of Service.
Next, make a copy of the original affidavit of service for your
records and annex the original as the last page of your motion papers.
The motion papers must then be filed with the court in order to
place the motion on the court’s calendar
for the date that you have chosen.
Filing the Motion With the Court
After you have attached the original affidavit of service to the
back of the motion papers, you must file the papers with the court
in order for the motion to be called and heard on the hearing date.
You can go to Locations to
find where to file your motion.
If you wish to oppose a motion, you may prepare an Affidavit in Opposition. If you do not oppose the motion, the judge may decide to grant the motion based on the information in the moving papers. An Affidavit is a sworn statement which must be signed in front of a notary public. You may submit as many affidavits from as many people as you feel are relevant to prove to the court that the request in the motion should be denied. You may attach copies of any relevant documents to the Affidavit in Opposition. You can download a free civil court form at Affidavit in Opposition, or you may use your own form.
After you have prepared the opposition papers, follow the procedure
outlined below:
1. Copies of the opposition papers must be served on all other parties at least 2 days before the hearing date of the motion. However, if you were served with the motion at least 16 days before the hearing date, the motion may demand that you serve opposition papers at least 7 days before the hearing date.
2. Opposition papers must be served by a person who is not a party
to the action and is eighteen years of age or older.
3. If a party has an attorney, the papers must be served on the
attorney. Service of the opposition papers may be made by delivering
the papers to the attorney personally, or by mailing the papers
to the attorney.
4. After the opposition papers have been served, the person who
served the papers must sign an Affidavit of Service which states
how and when the papers were served. The Affidavit of Service must
be signed in front of a notary. You may download the appropriate
free civil court form at Affidavit
of Service.
5. Make a copy of the Affidavit of Service for your records and
attach the original to the copy for the court.
6. Opposition papers can be filed in the courtroom on the date that
the motion is heard.
If you have been served with a motion and wish to ask the court
for relief of your own, you may notice a cross-motion for the same
day as the motion is scheduled to be heard. You can download
a free civil court form at Notice
of Cross-Motion, or you may use a form of your own. The address,
date, part number, room number and time that you fill in on the
Notice of Cross-Motion must be the same as the information on the
Notice of Motion that you received. The cross-motion must be served on all parties at least three days prior to the motion date, and should be filed with the court as soon thereafter as possible to make sure that it is placed on the court’s calendar. However, if you were served with the motion at least 16 days before the hearing date, you must serve the notice of cross-motion at least 7 days prior to the hearing date. If serving by mail, you must add 3 days and serve it at least 10 days prior to the hearing date.
Follow
the same procedure for serving the cross-motion as you would for
serving opposition papers. You may
refer to CPLR 2215 to view the law.
If you served your motion papers in enough time before the hearing
date of the motion, you may prepare any reply affidavits which must
be served at least one day before the hearing date of the motion.
You may go to Reply Affidavit
to download a free civil court form or you may use a form of your
own. You should follow the same procedure for serving the reply
papers as you did for Serving the Motion Papers
and prepare an Affidavit of Service
too. You should bring the original and extra copies to court. If
you did not have time to prepare reply papers and feel that it is
necessary, you can ask the court for an adjournment
for time to prepare papers. The judge may or may not grant your
request.
You are required to appear in court on the date the motion is scheduled to be heard. If you do not appear and you are the moving party, your motion will be denied. If you do not oppose the motion, the motion may be granted on default. You should give yourself extra time to get to the courtroom since all visitors are required to go through metal detectors. You should bring your copies of the papers with you and any papers and affidavits that you have not yet filed with the court.
The courtroom is presided over by a Judge, who is assisted by a court attorney, a clerk, and a court officer. The court officer, wearing the uniform, maintains order in the courtroom. The clerk, sitting at a desk at the front of the courtroom, can answer any questions you may have about the calendar or the Judge’s rules. The court attorney, who is a lawyer, assists the Judge. The Judge sits on the bench at the front of the Courtroom and hears arguments for and against motions and orders to show cause, reviews stipulations, and decides requests for adjournments.
There is 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. You should sit quietly and listen for your case to be called. You will have a chance to explain your case to the judge or the judge’s court attorney. If you are not ready to discuss the motion with the court, or you need more time to prepare papers, when the case is called you can ask the court for a postponement or an adjournment of the motion. If your case has been adjourned before and marked “final” it means the judge will not allow any further adjournments. For more information, you may go to Adjournments.
The other side may want to discuss the motion with you alone to
see if you can come to an agreement. If you reach an agreement,
you and the other side can write the terms of your agreement into
a stipulation for the judge to review. However, you do not have
to talk to the other side alone. You can wait until your case is
called by the court and the judge will make the decision on the
motion.
If you and the other side are unable to agree about the relief being requested, the judge will make a decision on the motion. Sometimes, the judge makes a decision immediately. However, the judge has 60 days to decide the motion. Some judges will mail you a copy of the decision if you provide a self-addressed stamped envelope. You may find out if a decision has been made by checking calendar information. Otherwise, you can go to the courthouse to get a copy of the decision. To find out where to go in your county refer to Locations.
The judge’s decision may award a judgment to the winning party. In order to start enforcing a judgment, it must first be “entered” by the clerk. Learn more at Entering Judgments. Once the judgment is entered, the winning party should serve a copy of the judgment with notice of entry on the losing party. This service starts the loser’s time to appeal running. Learn more at Serving Notice of Entry.
If you are unhappy with the judge’s decision and think that the judge made a legal or factual mistake, you can file an appeal. An appeal must be filed within 30 days from the service of the decision and order appealed from and written notice of entry. If neither side has served a copy of the decision and order with notice of entry, there is no time limitation on the filing of an appeal. For more information about appealing a decision, go to Appeals.
