§ 2212.Where motion made, in supreme court action.

Practice under the CPA and RCP generally require motions to be made to a court (CPA § 115(2)) except that the provisions governing a great many particular motions allowed them to be made alternatively to a judge; the Committee’s studies disclosed that the resultant delineation between court and judge motions in former practice followed no coherent or rational pattern. Its 1960 provision, allowing all motions to be made either to a court or a judge, was criticized, however, as (1) placing a potentially onerous duty upon judges to hear any motion made at any time out of court, unless the judge refused to hear it on the ground “that the moving party will not be prejudiced”; and (2) providing no machinery for notifying the judge in advance that a motion would be made to him at a particular time and place or for assuring the opposing party that the judge will be there and hear the motion. This section is, the Committee believes, a sensible and workable compromise: it rejects the formerly codified dichotomy between court and judge motions, allowing any motion to be made out of court upon order to show cause granted by the justice who is to hear it. The distinctions regarding form and entry of court orders and judges’ orders remain abolished, as in the 1960 bill, and the exception for a statute or rule providing otherwise is also unchanged. The Appellate Division, however, has been authorized to exclude particular motions from the operation of the instant provision, within any department, district or county; this is the effect of the new subdivision (d) of the instant rule, which in the 1960 bill appeared as part of subdivision (c) and applied only to that subdivision.

Subd (a) of this section contains the venue provisions of RCP 63(1) as to motions, since the former rule apparently has not been seriously abused.

Subd (b) is based on a part of CPA § 130(2). Although § 130(2) refers to orders made out of court and without notice, the cases seem to ignore the “out of court” language and state as a general rule that ex parte motions may be made anywhere in the state. See Rhodes v Wheeler, 48 App Div 410, 63 NY Supp 184 (3d Dept 1900); Farquhar v Wisc. Cond. Milk Co. 30 Misc 270, 62 NY Supp 305 (Sup Ct), modified, 53 App Div 641, 66 NY Supp 1130 (2d Dept 1900). There is no need to impose venue limitations for such motions. The convenience of attorneys is not involved, since there is no need for the opposing party’s attorney to appear and contest the motion. If the judge to whom the application is made feels too unfamiliar with the case to decide it, he can deny it on this ground. The possibility of judge-shopping does exist but the proposed provision minimizes it by dispensing with venue limitations only when no justice specified in subdivision (a) is available. The provision allows the motion to be made either to the Supreme Court or to a Supreme Court justice out of court.

Subd (c) replaces so much of CPA §§ 77 and 130 as allows county judges to make orders in actions and proceedings pending in the Supreme Court. CPA §§ 77 and 130(2) are extremely obscure and the decisions considering them have only obscured them further. Section 77 seems to give a county judge within his county all the powers of a Supreme Court justice at chambers, without qualification. This would authorize the county judge to make all orders that may be made out of court in both actions and special proceedings pending in the Supreme Court, whether made with or without notice, as well as to hear special proceedings that may be instituted before a Supreme Court justice out of court. The peculiar language of the section, referring to the “power conferred by law in general language upon an officer authorized to perform the duties of a justice of the supreme court at chambers or out of court,” stems from the Throop Code. As the provision first appeared in § 403 of the Field Code, it stated simply: “In an action in the supreme court, a county judge, in addition to the powers conferred upon him by this act, may exercise, within his county, the powers of a judge of the supreme court at chambers, according to the existing practice, except as otherwise provided in this act . . . .” The authors of the Throop Code made the provision apply also to a “judge of a superior city court, within his city” and utilized comments to the section, to preserve not only § 403 but “various other enactments, granting in general language, the powers of a justice of the supreme court at chambers, to several officers, including recorders of cities, etc., as well as those . . . named.” NY Code Civ Proc § 241, note Throop (ed 1880). It is unlikely that this change was meant to affect the power of county judges to handle chambers business of Supreme Court justices. Thus, under the Throop Code formulation, the Court of Appeals held that the county judge had no power to determine the custody of infants after the law was changed to require that such an application be made to the Supreme Court in court rather than to a justice at Chambers; and it stated that “[t]he powers of a county judge alter with alteration of the powers of the justice of the Supreme Court at chambers, for the powers of that officer at chambers form the standard by which to measure those of the county judge in that respect.” People ex rel. Parr v Parr, 121 NY 679, 680, 24 NE 481 (1880); see also People ex rel. Williams v Corey, 46 Hun 408 (NY Gen T 3d Dept 1887); Lowman v Billington, 65 Misc 111, 118, 119 NY Supp 825, 831 (Sup Ct 1909). Nevertheless, at least one decision has treated the CPA language, introduced by the Throop Code, as granting less power to county judges than the Field Code provision did. Gates v Gates, 171 NY Supp 1036 (Sup Ct 1918) (per Rodenbeck, J.). In another case Judge Rodenbeck declared that “[t]here is no provision of the Code of Civil Procedure which confers upon a county judge . . . the power exercised by a Supreme Court justice at chambers in all cases,” a statement that seems to fly in the face of § 77. Matter of Parkman, 108 Misc 316, 317, 177 NY Supp 589, 590 (Sup Ct 1919) (invalidating garnishee execution issued by county judge). While § 130(2) also authorizes county judges to handle chambers business of the Supreme Court, it applies only to orders in actions that may be made out of court and without notice. Since not all orders that may be made at chambers may be made without notice (see, e.g., NY Civ Prac Act §§ 129, 588, 882; NY R Civ P 249), CPA § 130(2) appears to grant narrower powers than § 77. The cases have not satisfactorily dealt with the dual coverage of these sections and their forerunners. Some have emphasized the ex parte requirement of § 130(2), seeming to ignore the broader language of § 77. Thus, in Middletown v Rondount and Oswego R. R. 12 Abb Pr NS 276, 43 How Pr 144 (NY Sup Ct), affd 43 How Pr 481 (NY Gen T 4th Dept 1872), it was held that a county judge could make an ex parte injunction order in a Supreme Court action but could not require the defendants to show cause before him why it should not be continued, since this would be equivalent to a motion on notice. See also Parmenter v Roth, 9 Abb NS 385 (Ct App 1870); Rochester v Davis, 12 Abb NS 270 (Sup Ct 1872). But cf. Babcock v Clark, 23 Hun 391 (NY Gen T 4th Dept 1881); Hathaway v Warren, 44 How Pr 161 (NY Sup Ct 1872). Another line of cases holds that these sections, “being general in scope, are controlled by the special provisions” governing particular motions and stating that they shall be made to “the court or a judge thereof.” Larkin v Steele, 25 Hun 254, 256 (NY Gen T 4th Dept 1881). Such language, these cases reason, evidences an intention that only the court in which the action is pending or a judge of that court should handle the motion. But the “court or a judge thereof” formulation is used in almost all the provisions that allow action out of court, except those that refer to a judge alone; it is the usual statutory formula for indicating that a motion may be heard out of court. If §§ 77 and 130(2) mean anything, they must apply to such provisions, and if the “special provision” reasoning of these cases were uniformly applied it would practically render these sections nugatory. Nevertheless, under this reasoning, the courts have invalidated county judge orders in Supreme Court cases requiring security for costs ( Gates v Gates, 171 NY Supp 1036 (Sup Ct 1918); Longstreet v Sawyer, 15 NY Supp 608 (Sup Ct 1891)), directing entry of a default judgment Kline v Snyder, 133 Misc 128, 231 NY Supp 275 (Sup Ct 1928)) and even granting an order to show cause returnable before the Supreme Court (Larkin v Steele, supra; contra: Gokey v Moate, 190 Misc 213, 74 NYS2d 32 (Sup Ct 1947)), although all of these orders may be made by a Supreme Court justice out of court. The CPA sections, then, are virtually worthless as guides to the power of county judges in Supreme Court cases. The CPLR provision rejects the criteria of these sections entirely and instead allows county judges to handle any kind of motion in a Supreme Court action, with only the specified exceptions. A similar proposal, without these exceptions, was advanced in 1915 by the Board of Statutory Consolidation. See 1 Report of the Board of Statutory Consolidation on the Simplification of the Civil Practice of New York, rule 22 (1915). The committee sees no reason to circumscribe the county judge’s power more narrowly. The subdivision is limited, unlike CPA §§ 77 and 130(2), to the situation where no justice of the Supreme Court is available in the county. This is the only time there is any need for the county judge to act. In those upstate counties with no resident Supreme Court justice, it will contribute greatly to the convenience of counsel.

Subd (d) conditions this broad grant of power by authorizing the Appellate Division to exclude any or all kinds of motions within a department, district or county, and thereby adapt the provision to local conditions, attitudes and needs. These vary widely throughout the state—from counties, at one extreme, where there are continuous motion terms of the Supreme Court and no need for the county judge to act, to those at the other extreme, with no resident Supreme Court justice, where the county judge’s authority assumes great importance. Further, the county judge is allowed to refer the motion to a Supreme Court justice, to cover situations where he is not sufficiently familiar with the case to decide the motion or feels that it involves a matter best left to the court in which the case is triable, there being no urgency requiring immediate decision. The subdivision removes the necessity for the specific references to a county judge in provisions governing certain kinds of motions. See, e.g., NY Civ Prac Act § 151 (justification of sureties); id. § 202 (appointment of guardian ad litem); id. § 684 (garnishment). Such references in some former provisions, such as those governing service by publication (id. § 230) and the provisional remedies of arrest and attachment (NY Civ Prac Act § 817; cf. (id. § 882)) are superfluous, since such orders may be made out of court and without notice. The new CPLR refers to a county judge in provisions governing particular applications only where it is intended that he be authorized and required to act regardless of the presence of a Supreme Court justice within the county, as in habeas corpus proceedings. Excepted from the new provision are motions in marital actions, because of the special policy considerations applicable to such actions; motions under article 44, which relate to the trial and should be made to the trial judge; and dispositive motions, such as a motion to dismiss or for summary judgment. The exception for dispositive motions, however, is made inapplicable to a motion for settlement of a claim by or against an infant or incompetent under new CPLR § 1207. In such cases there may be a special need for speedy action, and, since the former provision refers to a court or judge (NY R Civ P 294; cf. NY Civ Prac Act § 1320), it seems that a county judge would have this power under former law by virtue of CPA § 77. It is not intended that the county judge’s power to order such a settlement in a Supreme Court case be limited to one within the jurisdictional limits of the county court. It is not clear whether his power would be so limited under RCP 294, although CPA § 1323 does prescribe such an express limitation where the application for settlement is made by special proceeding independent of any pending case. The power granted county judges under the new provision is limited to the county in which the action or proceeding is triable, as under CPA § 77. The additional authorization contained in CPA § 130(2), to the county judge of the county where the applicant’s attorney resides, is not necessary. It was probably designed originally to serve the convenience of counsel rather than to provide an expeditious hearing, and there is little reason for it under modern conditions of transportation. The limiting phrase “and the particular judge is not specially designated by law” in § 130(2) is omitted as unnecessary, since a provision specifying a particular judge would in any event supersede the rule. See People v Windholz, 68 App Div 552, 74 NY Supp 241 (4th Dept 1902). Counties within New York city are excepted from the provision because their County Courts do not possess general civil jurisdiction.

Subd (d) added as new. The first clause replaces the analogous power granted in and limited to subd (c) of the 1960 provision. The proviso, though its effect may be merely precatory, was added to express the overwhelming sentiment of the bar regarding uniformity of motion practice in the various counties within the City of New York.

Add, L 1962, ch 308, § 1, eff Sept 1, 1963; amd, L 1963, ch 807, eff Sept 1, 1963; L 1965, ch 149; L 1986, ch 355, § 2, eff July 17, 1986.