The court may order that an issue of fact raised on a motion shall be separately tried by the court or a referee. If the issue is triable of right by jury, the court shall give the parties an opportunity to demand a jury trial of such issue. Failure to make such demand within the time limited by the court, or, if no such time is limited, before trial begins, shall be deemed a waiver of the right to trial by jury. An order under this rule shall specify the issue to be tried.
§ 2218.Trial of issue raised on motion
Article 22. Stay, Motions, Orders and Mandates · Last amended 1963 · Last verified July 21, 2026
In one sentenceCPLR 2218 lets a court order a separate trial, before the court or a referee, of a factual dispute that comes up on a motion, and preserves the right to a jury trial of that issue if a party demands it in time.
Full Text of CPLR 2218
Plain-English Summary
Most motions get decided on the papers, but sometimes a motion turns on a genuine dispute of fact that can't be resolved by affidavit alone. CPLR 2218 gives the court authority to carve that issue out and try it separately, either before the court itself or before a referee, rather than forcing the whole case to trial or guessing at the facts from written submissions.
If the factual issue is one a party would otherwise be entitled to have decided by a jury, the court has to give the parties a chance to demand a jury trial of that specific issue. Miss that window, whatever deadline the court sets, or if none is set, the point before trial begins, and the right to a jury on that issue is waived. Whatever order comes out of this process has to identify precisely which issue is being tried, so the separate proceeding doesn't balloon into a second trial of the whole case.
Frequently Asked Questions
Can a court order a mini-trial on a factual dispute raised in a motion?
Yes. CPLR 2218 allows the court to direct a separate trial, before the court or a referee, of an issue of fact raised on a motion.
Do I get a jury for a fact issue tried under CPLR 2218?
If the issue is one triable of right by jury, the court has to give the parties an opportunity to demand a jury trial of it. If you don't demand one within the time the court sets, you waive the right.
Does CPLR 2218 let a court try the whole case on a motion?
No. The order has to specify the particular issue being tried; courts have kept this rule narrow and haven't used it to convert a motion into a trial on the merits of the entire case.
What if the court doesn't set a deadline to demand a jury trial under CPLR 2218?
Then the demand has to be made before the separate trial of the issue begins, or the right to a jury on that issue is waived.
Who decides whether a factual issue on a motion gets its own trial under CPLR 2218?
The court, at its discretion. CPLR 2218 lets the court direct that the issue be tried before the court itself or referred to a referee.
Advisory Committee Notes
This section is new. There were some former provisions which concern a trial on certain motions. E.g., NY Civ Prac Act § 237-a; NY R Civ P 108. This section is applicable to motions generally. It also incorporates the former practice applicable to all motions of hearing testimony or directing a reference on motions. See Dege v Mascot Realty Corp. 243 App Div 546, 275 NY Supp 884 (2d Dept 1934); McCanliss v McCanliss, 268 App Div 138, 49 NYS2d 289 (2d Dept 1944). The issues of fact decided under this rule will be narrow. It does not change former practice, which will not ordinarily permit a motion to effect a preference for a trial of the whole case on the merits. Cf. Conrad v Conrad, 123 App Div 384, 107 NY Supp 1093 (1st Dept 1908); Hill v Hermans, 59 NY 396 (1874). As in former practice, the order made under this section would direct payment of any trial or jury fee required.
Amendment History
Add, L 1962, ch 308, § 1, eff Sept 1, 1963.
Source & verification. Provision text, History, and Advisory
Committee Notes are reproduced verbatim from the Consolidated Laws of New York.
Last verified July 21, 2026.
· Official source
Also known as: separate trial of issue on motion New Yorkjury trial on motion issue New YorkCPLR referee hearing motion fact disputeNew York motion factual dispute procedure