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).

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 bringing a motion for leave to amend in the New York Supreme Courts. For more detailed information, including local rules, on bringing a motion for leave to amend in a specific New York Supreme Court, please see the SmartRules New York Supreme Court Motion for Leave to Amend Guide for the court where your action is pending.

Timing:

Each party is permitted to amend its pleading once without leave of court, provided such amendment is made within twenty days after service, or any time before the response period expires, or within twenty days after a response has been served. CPLR 3025(a).

A party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances. CPLR 3025(b).

Motion for Leave to Amend Rules:

The court may permit amendment of the pleadings before or after judgment, on such terms as may be just, in order to conform them to the evidence in the case. CPLR 3025(c).

Except where otherwise prescribed by law or order of the court, there shall be an answer or reply to an amended or supplemental pleading if an answer or reply is required to the pleading being amended or supplemented. Service of such an answer or reply shall be made within twenty days after service of the amended or supplemental pleading to which it responds. CPLR 3025(d).

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 bringing a motion to file under seal in the New York Supreme Courts. For more detailed information, including local rules, on bringing a motion to file under seal in a specific New York Supreme Court, please see the SmartRules New York Supreme Court Motion to File Under Seal Guide for the court where your action is pending.

Timing:

There are no statutory restrictions regarding the timing for motions to file documents under seal.

Motion to File Under Seal Rules:

The authority to seal documents filed with the court is strictly construed in favor of disclosure. The Uniform Rules of the New York State Trial Courts provide that a court shall not enter an order sealing court records in whole or in part, in any action, except upon a written finding of good cause specifying the grounds. Uniform R. 216.01(a).

In determining whether good cause has been shown the court must consider the interests of the public as well as the interests of the parties. Uniform R. 216.01(a).

For purposes of the uniform rules on sealing of documents the term “court records” includes all documents and records of any nature filed with the clerk in connection with an action. Uniform R. 216.01(b). Documents exchanged between the parties but not filed with the clerk are not addressed by the seal but may be made subject to a protective order. Uniform R. 216.01(a); CPLR 3103(a).

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 making a jury demand in the New York Supreme Courts. For more detailed information, including local rules, on making a jury demand in a specific New York Supreme Court, please see the SmartRules New York Supreme Court Jury Demand Guide for the court where your action is pending.

Timing:

Any party may demand a trial by jury by filing a Note of Issue containing a jury demand. CPLR 4102(a).

If the note of issue does not contain a demand for trial by jury, any party served with the note of issue may demand trial by jury by filing a written jury demand within fifteen (15) days of service of the note of issue. CPLR 4102(a).

If a jury demand as to some but not all of the issues in the case is filed, any party served with the demand has ten (10) days to file a supplemental demand seeking trial by jury of additional issues. CPLR 4102(b).

When, through the course of trial, it is revealed that the relief required entitles the adverse party to trial by jury, the court will give the adverse party an opportunity to demand a jury trial of those issues and set a time limit for the making of such a demand. Failure to make a demand within the time specified by the court shall be deemed a waiver of the right to jury trial. CPLR 4103.

Jury Demand Rules:

A jury demand will not be accepted for filing unless it is contained within the note of issue, or a note of issue has already been filed in the case. CPLR 4102(a).

Any party may make a jury demand as to any issue of fact legally eligible for trial by jury. CPLR 4102(a).

The party demanding trial by jury may specify the issues to be tried by jury, otherwise the demand shall be deemed to apply to all issues legally eligible for trial by jury. If a trial by jury as to part of the action is filed any other party may request trial by jury of additional issues by filing and serving a jury demand for the additional issues within ten (10) days of service of the original jury demand. CPLR 4102(b).

Unless otherwise ordered by the Court, whenever a trial by jury is demanded for less than all issues, and (1) such issues as to which a trial by jury is demanded are specified in the note of issue or the jury demand, and (2) the note of issue and certificate of readiness have been properly served and filed, the Court will conduct a bench trial on all issues of fact as to which a jury trial was not demanded. Only if the determination of these non-jury issues does not dispose of the case, will the Court empanel a jury to try the remaining issues as to which a jury has been demanded. Uniform R. 202.40.

If no party to the action files a jury demand, whether in the note of issue or otherwise, the right to trial by jury is deemed waived by all parties. CPLR 4102(a).

A party waives his or her right to trial by jury by filing a written waiver with the clerk, failing to appear at the trial, or making an oral waiver in open court. Waiver does not constitute withdrawal of a jury demand unless the other parties consent to the withdrawal. The right to trial by jury cannot be waived by joinder of a jury-eligible issue with non-jury-eligible issues or assertion of a jury-eligible counterclaim, cross-claim or third party claim in a non-jury-eligible primary action. CPLR 4102(c).

A party may not withdraw a jury demand without the consent of all other parties to the action, whether or not those parties sought trial by jury. CPLR 4102(a).

Some New York County judges may have individual rules or standing orders regarding the presentation of jury demands. Consult the individual rules or standing orders of the judge to whom your case is assigned before proceeding.

The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting.

Use this “At A Glance Guide” to learn the statewide rules of civil procedure applicable to bringing a motion for discovery sanctions in New York Supreme Court. For more detailed information, including local rules, please see the New York Supreme Court SmartRules Guides: Motion for Discovery Sanctions, Opposition to Motion for Discovery Sanctions, and Reply in Support of Motion for Discovery Sanctions.

 Deadline

There is no provision of the CPLR, Uniform Rules or Commercial Division Rules restricting the time to bring a motion to compel or motion for discovery sanctions.  A restriction may be embodied in a scheduling order of the Court, such as one resulting from a Preliminary Conference.

Motion for Discovery Sanctions Rules

If a party fails to obey an order for disclosure of willfully fails to disclose information the court finds ought to have been disclosed, the court may make such orders as it deems just. CPLR 3126. The options available to the court include, but are not limited to the following.

(1) “Issue Sanctions.” The court may order that the issues to which the withheld information is relevant are determined in favor of the party from whom discovery was withheld. CPLR 3126(1).

(2) “Evidence Sanctions.” The court may prohibit the party who withheld discovery from supporting or opposing designated claims or defenses, introducing designated evidence or witnesses. CPLR 3126(2).

(3) “Terminating Sanctions.” The court may strike designated pleadings or “parts thereof,” stay proceedings until the discovery order(s) are obeyed, dismiss the action or any part, or render judgment by default against the party withholding discovery. CPLR 3126(3).

There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by: (1) a party, or the officer, director, member, agent or employee of a party; (2) a person who possessed a cause of action or defense asserted in the action; (3) a person about to depart from the state, or without the state, or residing at a greater distance from the place of trial than one hundred miles, or so sick or infirm as to afford reasonable grounds of belief that he or she will not be able to attend the trial, or a person authorized to practice medicine, dentistry or podiatry who has provided medical, dental or podiatric care or diagnosis to the party demanding disclosure, or who has been retained by such party as an expert witness; and (4) any other person, upon notice stating the circumstances or reasons such disclosure is sought or required. CPLR 3101(a).

Upon objection by a person entitled to assert the privilege, privileged matter shall not be obtainable. CPLR 3101(b).

The work product of an attorney shall not be obtainable. CPLR 3101(c).

A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purpose of this subdivision, an application for insurance shall not be treated as part of an insurance agreement. CPLR 3101(f).

Except as is otherwise provided by law, in addition to any other matter which may be subject to disclosure, there shall be full disclosure of any written report of an accident prepared in the regular course of business operations or practices of any person, firm, corporation, association or other public or private entity, unless prepared by a police or peace officer for a criminal investigation or prosecution and disclosure would interfere with a criminal investigation or prosecution. CPLR 3101(g).

In addition to any other matter which may be subject to disclosure, there shall be full disclosure of any films, photographs, video tapes or audio tapes, including transcripts or memoranda thereof, involving a person referred to in Civil Practice Law and Rules subdivision (a)(1). There shall be disclosure of all portions of such material, including out-takes, rather than only those portions a party intends to use. The provisions of this subdivision 3101(i) shall not apply to materials compiled for law enforcement purposes which are exempt from disclosure under section eighty-seven of the public officers law. CPLR 3101(i).

When a party is in default for failure to appear, that party is not entitled to notice or service of any copy required under Civil Practice Law and Rules Article 31. CPLR 3105.

Counsel must confer in good faith to resolve the issues raised by the motion before brining any “motion related to disclosure.” Uniform R. 202.07(a).

In all Commercial Division cases, parties must strictly comply with discovery obligations by the dates set forth in all case scheduling orders. Such deadlines, however, may be modified upon the consent of all parties, provided that all discovery shall be completed by the discovery cutoff date set forth in the preliminary conference order. Commercial Div. R. 13.

Applications for extension of a discovery deadline shall be made as soon as practicable and prior to the expiration of such deadline. Commercial Div. R. 13.

Non-compliance with such an order may result in the imposition of an appropriate sanction against that party pursuant to Section 3126 of the CPLR. Commercial Div. R. 13.

In the Commercial Division, counsel must consult with one another in a good faith effort to resolve all disputes about disclosure. If counsel are unable to resolve a disclosure dispute, the aggrieved party shall contact the court to arrange a conference as soon as practicable to avoid exceeding the discovery cutoff date. Counsel should request a conference by telephone if that would be more convenient and efficient than an appearance in court. Commercial Div. R. 14.

In the case of disclosure-related motions, an affirmation of good faith effort to resolve the issues raised by the motion must be annexed to the Notice and must indicate the time, place and nature of the discussions, the issues discussed and any resolutions. If no consultation with opposing counsel was held, the affirmation must indicate why. Uniform R. 202.07(a).

The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting.