NYP 8

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Author:
paul
ID:
23246
Filename:
NYP 8
Updated:
2010-06-12 17:30:35
Tags:
Motion Procedure
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Description:
NYP 8 - Motion Procedure
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  1. MOTIONS ON NOTICE

    1) What are they?

    2) What must be included?
    1 APPLICATION FOR AN ORDER of the court. A motion on NOTICE gives the adversary an OPPORTUNITY TO BE HEARD

    2 MUST INCLUDE the following papers

    • notice of motion
    • affidavits to support necessary factual allegations
    • memorandum of law in support of the motion (i.e., the legal argument)
  2. MOTIONS ON NOTICE

    1) When is the motion "made"

    2) When is the motion heard in court?

    3) How much advanced notice must the movant provide?
    1 MOTION MADE when the required papers (notice, affidavits, motion) are SERVED on the nonmoving parties

    2 MOTION HEARD in court on the "RETURN DATE"

    3 ADVANCE NOTICE must be given to all parties at least 8 DAYS in advance of the return date
  3. MOTIONS ON NOTICE

    1) What happens after the motion is decided?

    2) How does the losing party appeal?
    1 AFTER MOTION DECIDED, prevailing party must serve on the losing party

    • signed order, AND
    • notice of entry of order

    2 TO APPEAL the decision, a party must FILE and SERVE a NOTICE OF APPEAL within 30 DAYS from service of the signed order
  4. ORDER TO SHOW CAUSE

    1) What is it?
    2) When might it be used?
    3) How is one made?
    1 ALTERNATIVE to a motion on notice—It is an order, signed ex parte by the judge, directing the adversary to "show cause" on a specified date why a motion should not be granted.

    2 USED to accelerate the "return date," grant an immediate stay or TRO, or comply with statute

    3 MADE in the following manner

    • Movant drafts order and submits it ex parte to judge
    • Includes supporting affidavits and underling motion
    • Judge sets return date and method of service on adversary (usually personal delivery)
    • Judge signs order
    • Order and underlying motion papers served on opponent
    • Opponent opposes on "return date"
  5. EX PARTE MOTIONS

    1) What are they?

    2) When may they be used?

    3) What relief is there for a party aggrieved by an ex parte order?
    1 MOTION WITH NO ADVANCED NOTICE to the adversary

    2 STATUTORY AUTHORIZATION is required in order to use it

    3 AGGRIEVED PARTY must (1) make a motion to vacate the order, and if unsuccessful (2) appeal the denial of the motion to vacate

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