Ex Parte Motion in New York Supreme Court–At A Glance

Use this At A Glance Guide to learn the New York rules of civil procedure (New York Civil Practice Law and Rules and Uniform Rules) applicable to ex parte motions in the New York Supreme Courts. For more detailed information, including local rules, on ex parte motions in a specific New York Supreme Court, please see the SmartRules New York Supreme Court Ex Parte Motion Guide for the court where your action is pending.

Timing:

The New York Civil Practice Laws and Rules provide that an ex parte motion in a Supreme Court case may be made without notice at any motion term or to any Justice in any court in any county in the state. CPLR 2212(b). According to this rule, Supreme Court justices can provide ex parte relief on any matter, at any time, anywhere.  The Uniform Rules limit this power by providing that judges must refer ex parte applications to the judge assigned to a particular matter, unless the issue requires immediate determination. Uniform R. 202.07(e).

Ex Parte Motion Rules:

In most circumstances, all motions, including ex parte motions, must be made before the judge assigned to the matter. See Uniform R. 202.8(a).

According to custom and practice in New York, all motions must be made on notice, unless a statute or rule explicitly authorizes an ex parte motion. For example, there is an explicit ex parte statutory procedure for orders to show cause.  Other common statutory grants of authority for ex parte motions include:

Ex parte motions are permitted to seek the assistance of the court in devising a manner of service when standard methods fail. CPLR 308(5); CPLR 311(b).

The court may grant an extension of up to five (5) days time to commence the action. CPLR 304(a).

Attachment orders may be made and granted without notice. CPLR 6211.

If the required showing is made, a restraining order can be granted without notice to the opposing party. CPLR 6313.

All ex parte motions, including orders to show cause, must be accompanied by an affidavit stating the results of any prior motion for similar relief and specifying any new facts not previously shown that justify a new motion. CPLR 2217(b).

If the matter has not been assigned to an IAS judge, an ex parte motion (like any other motion) must be accompanied by a Request For Judicial Intervention (“RJI”). The moving party will receive an index number for the case from the court on filing the RJI form and must give written notice of the index number to all parties. The court will then assign the case to a judge as soon as practicable. See Uniform R. 202.8(b).

If the matter is too urgent to await judicial assignment, the filing party should inquire at the Clerk’s office for the procedure to bring his ex parte motion before a “standby” judge.

The court in a proper case may grant an order to show cause, to be served in lieu of a notice of motion, at a time and in a manner specified therein. CPLR 2214(d).

An order to show cause against a state body or officers must be served in addition to service upon the defendant or respondent state body or officers upon the attorney general by delivery to an assistant attorney general at an office of the attorney general in the county in which venue of the action is designated or if there is no office of the attorney general in such county, at the office of the attorney general nearest such county. CPLR 2214(d).

In ruling on an order to show cause, the judicial officer will usually determine the time and place of its return, who will serve the order, by what method the order will be served, and the court can include a provision staying or enjoining certain acts, i.e., a temporary restraining order. A signed order to show cause is returned to the party who presented it for service according to its terms. When served, it becomes equivalent to a notice of motion.

An order on an ex parte motion is not appealable. CPLR 5701(a)(2).

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