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Practice in the Appellate Division: Motions in the Third Department

MOTION FAQs

Q: How do I make a motion?
​A: If a party needs to seek incidental relief from the Court during the course of an appeal or proceeding, such party must make a motion, which may be brought on by a notice of motion or order to show cause. Motion practice in this Court is governed by Section 1250.4 of the Practice Rules of the Appellate Division and Section 850.4 of this Court's rules (22 NYCRR 1250.4, 850.4). All purpose motion forms, with instructions, are available on this Court's website at www.nycourts.gov/ad3.

Q: How can I maintain the status quo during an appeal?
A: Where compliance with the terms of a judgment or order during the pendency of an appeal threatens to change the status quo and render that appeal academic, the appellant may seek a stay of enforcement pursuant to CPLR 5519. Where ongoing acts not commanded or forbidden by the judgment or order would similarly tend to render the appeal academic, the appellant may move for an injunction pursuant to CPLR 5518. In either case, if the threat of change is imminent, the appellant may bring on a motion for a stay or injunction by an order to show cause containing a temporary restraining order (TRO) that would maintain the status quo during the pendency of the motion (CPLR 5518; see also Family Ct Act § 1114 [b]). A party seeking a temporary restraining order must give reasonable notice of: (1) the date and time, and location where the order to show cause will be presented and (2) the relief being requested. The proposed order to show cause must be accompanied by a copy of the papers the party seeking relief intends to present to the Court for filing (22 NYCRR 1250.4 [b] [2]). Absent exigent circumstances, the custom is to provide such notice by telephone at least 24 hours in advance. In addition to the notice required by 22 NYCRR 1250.4 (b) (2), the party seeking relief is also required to provide advance notice to the Court of its intention to present the application or order to show cause (22 NYCRR 850.4 [a] [1]). To the extent practicable, the party seeking relief shall also provide the Court with a copy of the papers the party intends to present to the Court for filing (22 NYCRR 850.4 [a] [1]).

Q: When and where can I present an order to show cause for signature?
A: Once notice has been provided to the Court pursuant to 22 NYCRR 850.4 (a) (1), the party seeking relief will be advised as to when and where the order to show cause may be presented for signature.

Q: When and where are motions returnable?
A: A motion brought on by notice of motion must: (1) be made returnable at 10:00 a.m. on a Monday, or if Monday is a legal holiday, the first business day of the week (22 NYCRR 1250.4 [a] [1]), (2) be served in accordance with CPLR 2103 and (3) must be made on notice as required by CPLR 2214. The return date of a motion brought on by order show cause and the method and time of its service are fixed by the Justice who signs the order to show cause. All motions are returnable at the Appellate Division courthouse in the Robert Abrams Building for Law and Justice, P.O. Box 7288, Capitol Station, Albany, New York 12224-0288.

Q: How many copies of motion papers are required?
​A: Only the original is required.

Q: Are motions submitted or argued?
A: All motions are submitted. Q: Must I appear on the return date? A: The Court does not call a motion calendar and no appearance on the return date is permitted or required (22 NYCRR 1250.4 [a] [8]).

Q: Can I seek an adjournment of a motion?
A: One adjournment, for a period of 7 or 14 days, shall be permitted upon written consent of the parties to the appeal, filed no later than 10:00 a.m. on the return date (22 NYCRR 1250.4 [a] [9]). Alternatively, a request for an adjournment, supported by a showing of good cause, may be made by letter to the Court's motion department or by facsimile transmission to (518) 471- 4747, with a copy to each party to the appeal or proceeding.

Q: Can I seek more time to serve and file answering or reply papers?
A: Requests for additional time to answer a motion may be made by letter to the Court's motion department or by facsimile transmission to (518) 471- 4747, with a copy to each party to the appeal or proceeding.

Q: Is there a fee to make a motion or cross motion?
A: The fee for filing a motion or cross motion regarding a civil appeal or special proceeding is $45 (CPLR 8022 [b]). However, there is no fee for a motion or cross motion that seeks poor person relief pursuant to CPLR 1101 (a). Additionally, no fee is required for a motion or cross motion made in the context of an unemployment insurance appeal. 

See https://www.nycourts.gov/ad3/Clerk/Motions%20FAQs.pdf (Last accessed July 11, 2021)
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  • Home
  • Recent Decisions & Articles
    • Recent Decisions, Legislation and Court Rules
    • New York Law Journal Articles by Joel R. Brandes
    • Articles Published in NYSBA Family Law Review and Journal
    • Bits and Bytes™ Issues - New York Divorce and Family Law Newsletter
    • Table of Contents of this website
    • Joel R. Brandes Letters to the Editor
    • Recent International Child Abduction Cases
    • Books by Joel R. Brandes
    • Adoption Information Articles
    • Child Abuse & Prevention Articles
    • Common Law Marriage Articles
    • Child Visitation Supervisors
    • Domestic Violence Articles
    • Engagement gifts Articles
    • Family Court Proceedings Articles
    • Grandparent and Non-Parent Visitation Articles
    • Professional Conduct Articles
    • Income Tax and Capital Gains Tax Articles
    • Spousal Support Articles
  • Divorce Information
    • Antenuptial, Prenuptial, Nuptial and Post Nuptial Agreements
    • Child Custody, Visitation (Parental Access) & Parental Alienation
    • Child Support
    • Counsel Fee Awards
    • Degrees & Licenses
    • Emergency Court Applications
    • Enforcement of Judgments & Orders
    • Equitable Distribution of Marital Property
    • Equitable Distribution Law for Trial Counsel
    • Equitable Distribution Decisions Chart to January 1, 2023
    • Exclusive Occupancy of Marital Home
    • Frequently Asked Questions About Marriage, Divorce, Separation and Custody
    • Grounds for Divorce
    • Legal Fees, Liens & Sanctions
    • Litigation & Procedure
    • Maintenance Awards until 2016
    • Maintenance Awards on or after January 22, 2016
    • Maintenance, Special Relief & Spousal Support
    • Maintenance and Child Support New York Court System Tools
    • Marital Property, Separate Property and Property Distribution
    • Motion Practice
    • Modification of Maintenance and Child Support Orders and Judgments
    • Orders of Protection
    • Qualified Domestic Relations Orders
    • Retirement Benefits
    • Right to Counsel in Matrimonial Action
    • Role of the Attorney for the Child
    • Special Relief (life, health, accident, medical and dental insurance)
    • Social Security Benefits for Divorced Spouses
    • Table of Effective dates of Revisions to Domestic Relations Law §§ 236, 237, and 240
    • Trial and Trial Testimony
    • Trial and Trial Testimony 2023 Update
    • Trial of a Divorce and Custody Action Website
    • Trial Evidence for Divorce and Family Law
    • Uniform Child Custody Jurisdiction & Enforcement Act Overview
    • Valuation Aids
  • Appellate Practice
    • Important Practice Updates from the Appellate Divisions
    • Instructions for taking an Appeal to the Appellate Division
    • Taking an Appeal from Supreme Court under NYCSEF
    • Who is served with the notice of appeal?
    • Registration and Consent to Efiling by Respondents
    • Preserving the Right to Appeal
    • Appellate Division is Single Statewide Court
    • Appeals to the Appellate Division as of Right from the Supreme Court
    • Permissible Appellant—“Aggrieved party” and Mootness doctrine
    • Permissible Appellant - Appealable Judgment or Order
    • Permissible Appellant - Appeal from Order denying motion with leave to renew or without prejudice
    • Appeals : Appellate Review of Non-final Orders in Matrimonial Actions
    • Appeals : Fundamental and Harmless Error
    • Appeals : Matrimonial Presumptions and the Burden of Proof
    • Appeals : Stare Decisis, Precedent and Dicta
    • Appeals : Understanding the Support Magistrate Objection Process
    • Appeals to the Appellate Division from Family Court
    • Perfecting the Appeal to the Appellate Division - Methods
    • Perfecting the Appeal to the Appellate Division - Appellate Division Bound by Record
    • Perfecting the Appeal to the Appellate Division - Order and Settle the Transcript
    • Method of Settlement of the Transcript
    • Appeals to Appellate Division from Supreme Court by permission
    • Form of Record and Briefs - Parties, Docket Number, Method of Reproduction
    • ​Form of Briefs and Appendices - CPLR
    • What must be in the Reproduced Full Record
    • What is the Judgment-roll?
    • What must be in the Appendix.
    • What must be in Briefs
    • Time, number and manner of filing of records, appendices and briefs
    • Cross appeals - Briefing Schedule, Joint Record, Content of Briefs, Time for Service
    • Extension of time to perfect appeal
    • Concurrent appeals, Appeals from a single order or judgment. Consolidation of Appeals.
    • First Department Requirement of note of issue
    • Stay of Enforcement of Order or Judgment Pending Appeal
    • Practice in the Appellate Division: What Laws Govern
    • Practice Rules of the Appellate Divison: Joint & Local Rules
    • Practice in the Appellate Division First Department New and Amended Local Rules June 25, 2021
    • Practice in the Appellate Division, First Department, Frequently asked questions
    • Practice in the Appellate Divison: Motions in the First Department
    • Practice in the Appellate Divison: Motions in the Second Department
    • Practice in the Appellate Division: Motions in the Third Department
    • Practice In The Appellate Division:Motions in the Fourth Department
    • Instructions for Taking an Appeal Frequently Asked Questions
    • Instructions for Perfecting an Appeal to the Appellate Division
    • Instructions to Perfect an Appeal in the Third Department
    • Instructions to perfect an appeal in the Fourth Department
    • Appellate Division Fourth Department Q & A
    • Universal E-filing in the Fourth Department
    • Standards of Appellate Review in Matrimonial Actions
    • Standards of Appellate Review of Custody Determinations
    • Standards of Appellate Review of Custody Determinations - Changed Circumstances during pendency of appeal
    • Standards of Review : Fugative disentitlement doctrine in custody and child support appealsw Page
    • Mandatory Electronic filing (e-filing): First Department
    • Electronic filing (e-filing): First Department Digital submission in Non-Efiled Matters
    • Electronic filing (e-filing): First Department New and Amended Local Rules
    • Electronic filing (e-filing): First Department Formatting Specifications
    • Electronic filing (e-filing): First Department Frequently Asked Questions
    • Electronic filing (e-filing): Second Department Technical Guidelines
    • Mandatory Electronic filing (e-filing): Second Department
    • Electronic filing (e-filing): First Department Motions Frequently Asked Questions
    • Electronic filing (e-filing): Second Department - Motions -22 NYCRR 670.4 (d)
    • Electronic filing (e-filing): Third Department - Digital Copies - 22 NYCRR 850.4 (a)
    • Electronic filing (e-filing): Third Department Motion FAQs
    • Mandatory Electronic filing (e-filing): Fourth Department
    • Electronic filing (e-filing): Fourth Department Motion FAQS
    • Electronic filing Authorization in matrimonial actions
    • E-filing Rules and Forms of the Appellate Division
    • Joel R. Brandes Reported Appeals
    • Court of Appeals Rules of Practice
    • How to take an Appeal to the Court of Appeals
    • Appeals as of Right to the Court of Appeals
    • Motions for Leave to Appeal to the Court of Appeals
    • Guidelines for Preparing a Motion for Leave to Appeal to the Court of Appeal
    • Rule 500.11 Review Alternate Procedure for Selected Appeals to the Court of Appeals
    • Appealability and Reviewability in the Court of Appeals
    • What is a Final Determination appealable to Court of Appeals?
    • The "Necessarily Affects" Requirement of the Court of Appeals
    • Filing of record material and briefs in normal course appeals to the Court of Appeals
    • Contents of Records, Appendices and Exhibits in Normal Course Appeals to the Court of Appeals
    • Content and form of Briefs in Normal Course Appeals to the Court of Appeals
    • Frequently Asked Questions for Civil and Criminal Appeals to the Court of Appeals
    • Civil Motions in the Court of Appeals Frequently Asked Questions
    • Court-Pass - Court of Appeals Digital Filing Frequently Asked Questions
    • Court of Appeals Portal for uploading companion digital submissions
    • Court of Appeals Court Pass Public Access and Search
  • Trial of a Divorce and Custody Action
  • ​New York Court System Links for Lawyers
  • New York Court Rules
  • Electronic Filing in Supreme Court Rules and FAQ's
  • Removal of NYCSEF Consent 22 NYCRR 202.16-c
  • Sending Documents to the Court Using EDDS
  • Family Court Official Forms
  • New York Courts Case Search Page for E-filed Case Files
  • New York Court System Site Map
  • New York Court Websites and Decisions
  • International Child Abduction Laws and Information
  • Hague International Child Abduction Convention cases from 2011 to date.
  • Table of Reported and Unreported Hague Convention Cases from 1988 until 2010
  • Who we are
  • Joel R. Brandes Curriculum vitae
  • Make an Appointment for a Consultation
  • Subscribe to Bits and Bytes™
  • Terms of Use Privacy Policy
  • Consultation Fee Payment
  • Untitled
  • New Page