Motions in a special proceeding, made before the time at which the petition is noticed to be heard, shall be noticed to be heard at that time.
R 406.Motions
Article 4. Special Proceedings · Last amended 1963 · Last verified July 21, 2026
In one sentenceCPLR 406 requires any motion made in a special proceeding before the petition's hearing date to be noticed for that same date, keeping preliminary applications on one calendar instead of a separate motion schedule.
Full Text of CPLR 406
Plain-English Summary
CPLR 406 packs a whole scheduling rule into one sentence: a motion made before the time set for the petition's hearing has to be noticed to be heard at that same time. A special proceeding runs toward a single fixed hearing date, and this rule keeps every preliminary application — a motion to dismiss under CPLR 404, a motion to correct defects under CPLR 405, or anything else that comes up early — anchored to that date rather than scattered across separate motion days.
Ordinary actions often work the other way: an interlocutory motion gets its own return date, sometimes months before the case is otherwise ready to move. A special proceeding forgoes that separate track. Anyone filing a preliminary motion needs to time it, and the papers supporting it, to the hearing date already on the calendar, since that's when the court will take it up.
CPLR 403(d) supplies the one variation: when the court grants an order to show cause instead of a notice of petition, it can set its own time and manner of service, and that court-set schedule controls in place of the default rule in CPLR 406.
Frequently Asked Questions
Do I need a separate court date for a pre-hearing motion in a special proceeding?
No. CPLR 406 requires a motion made before the petition's hearing date to be noticed for that same date, rather than a separate motion return date.
Why does New York consolidate motions onto the petition's hearing date?
Special proceedings are built around one fixed hearing date meant to resolve the matter quickly. Folding preliminary motions into that date avoids the delay a separate motion calendar would add.
Can the court set a different schedule for a motion in a special proceeding?
Yes, when it grants an order to show cause under CPLR 403(d) instead of a notice of petition — the court can then set its own time and manner, which controls over the default rule in CPLR 406.
What kinds of motions get folded into the petition hearing under CPLR 406?
Does CPLR 406 apply to motions made after the hearing?
No. It governs motions made before the time the petition is noticed to be heard; it doesn't reach applications that arise after that hearing has taken place.
Advisory Committee Notes
This rule shortens the time for notice of pre-hearing motions, so that they may be heard at the hearing on the petition. Otherwise, the general motion practice rules apply to special proceedings. Certain specific motions, however, are not adapted for use in special proceedings. There is no need, for example, for a motion for summary judgment, since, under new CPLR rule 409(b), the court must make a summary determination upon the pleadings and papers where it is possible to do so. This is the equivalent of a motion for summary judgment in an action.
Amendment History
Formerly § 406, add, L 1962, ch 308; amd, L 1962, ch 318, § 2, 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: special proceeding motion scheduling NYmotions before petition hearing New YorkCPLR 406 motionsconsolidated hearing date special proceeding