R 2214.Motion papers; service; time.

The first sentence of subd (a) is new; except for the last phrase, it is in accord with New York case law. See, e.g., Deutermann v Pollock, 38 App Div 493, 56 NY Supp 634 (2d Dept 1899); Tripp, A Guide to Motion Practice 6 (rev ed 1949). The requirement that the grounds for the motion be specified in the notice is contrary to former New York law, which generally permits specification of the grounds in the supporting papers rather than in the notice. See Millard v Delaware L. & W. R. R. 204 App Div 80, 197 NY Supp 747 (3d Dept 1923); Rathkopf v Walker, 190 Misc 168, 73 NYS2d 111 (Sup Ct 1947); Tripp, op cit supra at 11. However, § 280 of the CPA requires specification of the grounds for a motion objecting to the pleadings and of RCP 62 makes the same requirement where the motion is based upon a mistake, omission, defect or irregularity. These two provisions have thus been broadened into a general rule requiring specification of the grounds of all motions in order to give adequate and specific notice to an adversary, facilitating his preparation of opposing papers. Such specifications should be in the notice of motion itself or incorporated in an accompanying memorandum. Affidavits should not be used for this purpose but should be confined to factual statements. The second sentence of this subdivision is derived from CPA § 117.

Subd (b) is derived from RCP 60 and 64 and of CPA § 117. The five-day notice provision, where all the attorneys have their offices in the same city or village, has been eliminated. With the speed of modern communications it is no longer necessary to distinguish between attorneys with offices in the same and different cities. The longer period was chosen as the general rule so that a uniform two-day answer provision could fairly be provided. Moreover, under the five-day rule, an attorney served with a motion on a Friday afternoon often has inadequate time to prepare sufficient opposition papers.

Subd (c) is derived from RCP 65. Rule 65 apparently refers only to papers other than affidavits in support or opposition. Affidavits are also furnished to the court, of course, and the first sentence of the subdivision makes this clear. The last sentence of this subdivision is derived from a provision of RCP 64, relating to answering affidavits which must be furnished at least five days before the hearing. The provision has been expanded so that it applies to all papers required to be served. The expanded provision accords with case law, which holds that papers not served will not be considered. See Kenney v South Shore Nat. Gas Co. 126 App Div 236, 110 NY Supp 503 (4th Dept 1908); Jenkins v Warren, 25 App Div 569, 50 NY Supp 957 (1st Dept 1898); but cf. Rein v Oakside Estates, Inc. 3 AD2d 846, 161 NYS2d 235 (2d Dept), leave to appeal granted, 3 NY2d 706, 143 NE2d 925 (1957). It has been held that the court may allow submission of additional papers at the hearing, giving the adverse party an opportunity to answer. Bucholtz v Florida East Coast Ry. 59 App Div 566, 69 NY Supp 682 (1st Dept 1901). The provision of rule 65 that the pleadings are always deemed before the court has been eliminated as unnecessary. No change is intended.

Subd (d) is derived from RCP 60. Rule 60 is primarily concerned with shortening the time for a notice of motion. See, e.g., In re Argus Co. 138 NY 557, 34 NE 388 (1893); Silverman v Silverman, 189 Misc 227, 70 NYS2d 90 (Sup Ct 1947). An order to show cause also permits the court to direct the manner of service. See, e.g., CPA §§ 794, 1155, 1170; Stuart v Stuart, 195 Misc 928, 88 NYS2d 608 (Sup Ct 1949). As under former law, the order should be issued under this subdivision only upon an affidavit sufficiently stating the need therefor, and it must contain a direction of the manner and time of its service. Service is of a copy of the order. Under former practice, an order to show cause was often sought, despite the adequacy of the notice of motion procedure, in order to obtain a stay which is incorporated in the order to show cause. While there is no reason why a stay cannot be secured on separate ex parte motion and served with a notice of motion, the court or moving party may prefer that the stay be incorporated in the order to show cause.

The Committee recommends amendments to Rule 2214(b) and 2215 of the CPLR to improve practice relating to cross-motions. Currently, Rule 2215 provides that an attorney making a cross-motion shall serve notice of the cross-motion at leastt three days before the reeturn date of the original motion. When read with the time for service of motion papers and responses in Rule 2214(b), several problems are presented:

First, if the original moving party gives 12 days notice instead of eight days notice, the party can demand that the responsive papers be served seven days before the return date, giving sufficient time to reply. However, this demand does not apply to any cross-motion that the responding party may make. Thus, even if the moving party gives additional time, that party has no ability to require service of notice of a cross-motion any earlier than three days before the return date.

Second, three days is very little time for the original moving party to respond to a cross-motion.

Third, and worse yet, if the cross-motion is served by mail, it may not be received by the return date, and the original moving party may appear in court without any knowledge that a cross-motion has been made (While courts are split, a recent concurring opinion in the First Department noted that the additional five days that are added when papers are served by mail, as provided by Rule 2103(b)(2), are not added when a cross-motion is served. (See Guzetti v. City of New York, 32 A.D.3d 234, 820 N.Y.S.2d 29 (1st Dept., August 10, 2006)).

To resolve these problems, the Committee is proposing several amendments to Rules 2214(b) and 2215. CPLR 2214(b) would be amended to provide that where the moving party gives additional time for service of the answering papers and demands that they be served seven days before the return date, that demand would also be applicable to any cross-motion that the responding party may wish to make. This would give the moving party adequate time to respond to the cross-motion. The Committee would also amend this subdivision to provide that in order to obtain papers seven days in advance, the original motion must be served at least 16 days, rather than 12 days, before the return date. This would give the responding party adequate time to prepare papers, not only in response to the motion but also in support of any cross-motion. Presumably, time is not critical when moving party chooses to give more time in order to receive the answering papers sooner, and the Committee believes that the timetable it proposes for motions and cross-motions give both sides a fair opportunity to prepare papers, making it more likely that all arguments will be ready to be heard on the return date.

The Committee also proposes amending Rule 2215 in several respects. The first is simply to conform to its amendment of 2214(b) with respect to situations in which the moving party demands the cross-motion seven days before the return date. The more significant changes deal with service of cross-motions. The Committee’s objective, as noted, is to allow both parties to have adequate time to prepare their papers. However, this objective might fail if the party making the cross-motion could serve by mail on the due date. Because a cross-motion is served much later than the original motion, even if 2214(b) is amended as proposed, the party against whom the cross-motion is made should receive it on the day it is due. Under the current rule, the party serving the cross-motion could mail, and the time between mailing and delivery is time lost to the party who must respond. Therefore, the Committee proposes that 2215 be amended to require that service be three days earlier when mailing is used. In addition, it proposes that when overnight mail is used, service be made one day before the due date.

The Committee recognizes that there are instances when time is critical. These amendments would not affect those motions where the moving party serves a motion eight days before the return date. In those instances, the current rules will continue to apply, and both parties will be under significant time pressure. However, where time is not critical, there is no reason to provide for unreasonably short timetables. Giving adequate time to both the moving party and the maker of a cross-motion will allow attorneys to thoroughly present their arguments to the court without all-too-common waste of time caused by requests for adjournments on the return day.

Add, L 1962, ch 308, § 1, eff Sept 1, 1963; amd, L 1972, ch 752, eff May 30, 1972; L 1984, ch 177, § 1, eff Aug 4, 1984; L 2007, ch 185, § 1, eff July 3, 2007; L 2014, ch 109, § 1, effective July 22, 2014.