R 2215.Relief demanded by other than moving party.

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.

1979 Recommendations of the Advisory Committee on Civil Procedure:

The problem that has been brought to the Committee’s attention is that sometimes, when X has made a motion against Y, Y will intermingle somewhere in his opposing papers, all presumably designed only to oppose X’s motion, a demand for affirmative relief. This demand may crop up at some belated and unexpected point in the opposing papers, and thus take the moving party by surprise. It can also add unnecessary chores for the motion judge who meets the demand for cross-relief only in the middle of his reading of the opposing papers.

The Committee hopes that the brief amendment proposed above, merely adding the words “of cross-motion” to CPLR 2215, will encourage the practice, by a lawyer seeking cross-relief, of leading off his opposing papers with a formal “notice of cross-motion”, thus enabling all readers to discern at the very outset that he is seeking affirmative relief and not merely opposing the movant’s demand for relief. It would not be a bad practice for such a cross-movant to recite, in the notice of cross-motion, that the accompanying affidavits or other proof are intended to carry out the dual mission of opposing the main motion and also supporting the demand in the cross-motion. If there are several affidavits, some designed for opposition and others only for the cross-relief, the covering notice of cross-motion could identify the accompanying affidavits and their respective missions.

The main idea is to have the covering paper clue the reader in to the whole mission of the accompanying papers, and to avoid the situation in which a demand for cross-relief comes up as almost a hidden incident of affidavits opposing the main motion.

The inclusion of a general relief clause, with which a notice of motion ordinarily ends in New York practice, will still cover other items of relief reasonably supportable on the papers, and a general relief clause may also be used in the notice of cross-motion.

The proposal is intended to clarify the obligations of a cross-movant. It is not intended to place any restriction on the court’s powers to grant affirmative relief.

This rule is derived from CPA § 117. An opposing party cannot request affirmative relief in answering affidavits; he must service a notice. Helfand v Massachusetts Bonding & Ins. Co. 197 App Div 759, 189 NY Supp 246 (1st Dept 1921); Silvestro v City of New York, 49 NYS2d 217 (Sup Ct 1944), affd, 269 App Div 783, 55 NYS2d 583 (2d Dept 1945). In some instances, however, the law specifically authorizes the granting of cross-relief without a notice or even a demand. NY R Civ P 109, 112, 113; new CPLR rules 3211, 3212.

Where adequate papers have already been served in opposition to the motion, these may be read in support of the relief demanded by the opponent without the necessity of any separate supporting papers. Levine v Levine, 92 NYS2d 180 (Sup Ct 1949).

Add, L 1962, ch 308, § 1; amd, L 1980, ch 132, § 1, eff Jan 1, 1981; L 2007, ch 185, § 2, eff July 3, 2007.