NYP 7.txt

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Author:
twiggy924
ID:
26555
Filename:
NYP 7.txt
Updated:
2010-07-13 00:20:11
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Motion Procedure
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Description:
Motions
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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–
    • (i) notice of motion
    • (ii) affidavits to support necessary factual allegations
    • (iii) 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. Deciding Order

    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
  6. MOTION FOR SUMMARY JUDGMENT

    1) When is the motion appropriate?

    2) When can the motion be made?

    3) When must the motion be made?
    1 APPROPRIATE when there is no genuine issue of material fact requiring a trial

    2 MAY BE MADE after ∆ serves his Answer

    3 MUST BE MADE within 120 DAYS from filing of the Note of Issue, which puts the case on the court's calendar. (may be able to make motion outside of deadline for "good cause")
  7. MOTION FOR SUMMARY JUDGMENT

    If the court concludes that the nonmovant, rather than the movant, is entitled to SJ on an issue presented, may the court grant SJ to the nonmovant?
    YES

    This is known as SEARCHING THE RECORD. In a summary judgment motion, a court reviews all of the evidence in the record, regardless of which side submitted it, and can deny the motion OR enter judgment for the nonmoving party if all the evidence in the record supports it.
  8. MOTION FOR SUMMARY JUDGMENT

    If the only remaining issue of fact concerns damages, can a court grant partial summary judgment?
    YES

    A court can grant partial summary judgment on the issue of a party's liability, and order immediate trial on the issue of damages.
  9. MOTION FOR SUMMARY JUDGMENT

    Is a motion for summary judgment ever allowed prior to service of the answer?
    YES—in the following two cases

    1) CONVERSION OF A MOTION TO DISMISS

    • Court can cover motion to dismiss into motion for SJ
    • Allows decision to be based on evidence (merits), rather than the sufficiency of the claim
    • Parties must have submitted factual affidavits in connection with the motion
    • Court must give advanced notice of conversion to allow them to oppose

    2) IN LIEU OF COMPLAINT—in two types of actions, the PLAINTIFF may move for SJ at the same time she serves process

    • Action based on instrument for payment of money only
    • Action on an out-of-state judgment (full-faith-and-credit)

    π must provide 20 days advanced notice of motion if served by personal delivery in NY (30 days for all other forms of service)

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