Practice in the Appellate Divison: Motions in the Second Department
E-Filing in the Appellate Division Second Department: Motions By Administrative Order issued on July 1, 2020, the Second Department has amended its local rules of practice to omit the requirement that papers in relation to motions and original proceedings be filed in both digital and hard copy format. Rather, all such papers “shall be submitted in digital format, shall comply with the technical requirements for electronically filed documents (22 NYCRR Part 1245, Appendix A), shall be served on all parties in digital format, nd shall be filed by uploading through the digital portal located on the home page of the Court’s website with proof of service” (Admin Order 2020-0701). Hard copy submissions are only required when specifically requested by the Court. This amendment, by which subdivision (d) was added to section 670.4 of the Second Department’s Rules of Practice, applies to both NYSCEF matters and matters in which electronic filing via the NYSCEF system is not mandated. Exemptions are provided for exempt attorneys and exempt litigants as those terms are defined in the Electronic Filing Rules of the Appellate Division (22 NYCRR 1245.4), who must be served and must file in hard copy. (See https://www.nycourts.gov/courts/ad2/Motions_go_digital.shtml) (Last accessed July 11, 2021)
22 NYCRR 670.4 (d) Motions (d) Digital Copies of Motion Papers. Except as otherwise provided, the papers filed in relation to every motion and every proceeding initiated in the Court shall be submitted in digital format, shall comply with the technical requirements for electronically filed documents (22 NYCRR Part 1245, Appendix A), shall be served on all parties in digital format, and shall be filed by uploading through the digital portal located on the home page on the Court’s website with proof of service. In such circumstances, as well as in matters in which electronic filing is mandated and that filing is effectuated pursuant to the Electronic Filing Rules of the Appellate Division (22 NYCRR Part 1245), no hard copy submission shall be made unless requested by the Court. Exempt attorneys and exempt litigants, as defined in 22 NYCRR 1245.4, are exempt from the digital filing requirement and must file original papers in hard copy in accordance with 22 NYCRR 1250.4(a) and be served in hard copy. See https://www.nycourts.gov/courts/ad2/pdf/Administrative%20Order%202020-0701%20-%20Amending%20670.4%20(003).pdf (Last accessed July 11, 2021) Motion Practice in General. All motions are governed by the general provisions of the CPLR including CPLR 2214 and 2215. If a party needs to seek relief from the court prior to or after the filing of records and briefs, the party must proceed by way of a motion, which may be brought on by a notice of motion or order to show cause. Oral argument is not permitted on motions. On the return date they are deemed submitted and counsel or self-represented parties should not appear at the courthouse (22 NYCRR § 1250.4[a]).
Temporary restraining order. As with an application pursuant to CPLR 5704 section 670.5(e) of the Rules requires that an applicant for a TRO give his or her adversary reasonable notice of the date, time, and place that the application for the order to show cause will be made, and the nature of the relief requested. The motion papers must include an affidavit describing the notice given and the position of the other party. A party seeking a temporary restraining order must give reasonable notice of the date and time when the order to show cause will be presented and the relief being requested accompanied by a digital copy of the papers the party seeking relief intends to present to the court for filling (22 NYCRR 1250.4[b]; 670.4[a]). Absent exigent circumstances, the custom is to give such notice by telephone at least 24 hours in advance. An order to show cause containing a temporary restraining order must be personally presented for signature by an attorney or by the party if they are self-represented (proceeding pro se). If the movant is unwilling to give notice, he or she must set forth the reasons for such unwillingness. If an attorney or a party pro se is seeking a TRO, he or she must personally appear unless excused (22 NYCRR § 1250.4[b]). 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).
Notice of motion. If time is not of the essence and interim relief with a temporary restraining order (TRO) is not needed, the movant should proceed by notice of motion (a sample notice of motion is annexed to this pamphlet). Motions prosecuted by notice of motion may be made returnable at 10:00 A.M. on any Monday, except holidays (22 NYCRR § 1250.4[a]). The party making the motion is required to give his or her adversary at least eight days notice if the papers are delivered in person, and at least l3 days notice if they are served by mail. The moving papers should be filed with the court at least one week before the return date and opposition papers should be filed by 4:00 P.M. on the business day before the return date (22 NYCRR § 1250.4,). The motion papers must contain a copy of the notice of appeal and the paper appealed from (22 NYCRR §1250.4[a]), an affidavit setting forth the background of the case and why the relief requested should be granted, any other exhibits or affidavits deemed necessary, and an affidavit stating that the papers were served upon the adversary. A cross motion must be made returnable the same day as the original motion and must be served and filed three business days prior thereto (22 NYCRR § 1250.4[a]).
Order to show cause. If time is of the essence or a TRO is needed, the moving party should proceed by order to show cause (a sample order to show cause is annexed to this pamphlet). The order to show cause must be signed by a Justice of this court. The TRO should be set forth in a separate paragraph. The granting of a TRO lies within the discretion of the Justice who signs the order to show cause; it is not granted as a matter of course. The court will insert the return date of the application and it will usually be a shorter period than if the motion were made by notice of motion. The signing of an order to show cause is discretionary, and, if it is not signed, the movant may proceed by notice of motion. The movant must include with the order to show cause a copy of the notice of appeal and paper appealed from, an affidavit setting forth the background of the case and why the relief requested should be granted, if a TRO is requested what immediate harm would result if it is not granted, and any other exhibits or affidavits deemed necessary. An order to show cause may be presented for signature at the Appellate Division courthouse located at 45 Monroe Place in Brooklyn, Mondays through Fridays, excepting public holidays, between the hours of 9 a.m. and 5 p.m. Additionally, individual Justices may be available to entertain an order to show cause in their home chambers, which should be contacted in advance to make an appointment.
When and where motions are returnable A motion brought on by notice of motion may be made returnable only at 10:00 a.m. on a Monday (22 NYCRR 1250.4[a]), and must be served in accordance with CPLR 2103 and made on the notice 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 it. All motions are returnable at the Appellate Division courthouse.
Digital Copies of motion papers required One digital copy of motion papers are required. A hard copy is not required which may be submitted via NYSCEF or, if the matter is not subject to NYSCEF, through the portal on the court's website.
Motions submitted All motions are submitted. No calendar of motions is called and no appearance is permitted or required (22 NYCRR 1250.4[a]).
Adjournment of a motion Written requests 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 it at (212) 401-9114, with a copy to each other party to the appeal or proceeding.
Adjournment of time to serve and file answering or reply papers Written requests for additional time to answer a motion or to file a reply, may be made by letter to the court's motion department at AD2-MOTIONS@NYCOURTS.GOV or by facsimile transmission to it at (212) 401-9114, with a copy to each other party to the appeal or proceeding.
Fee to make a motion or cross motion CPLR 8022[b] provides that the fee for filing a motion or cross motion regarding a civil appeal or special proceeding is $45. However, no fee is payable for a motion or cross motion which seeks poor person relief pursuant to CPLR 1101[a].
Service, filing, and fees for orders to show cause signed in chambers
Litigants and their counsel often present orders to show cause for signature to Justices of the Appellate Division, Second Department, at their chambers outside the Appellate Division Courthouse in Brooklyn. Such presentations may only be made after chambers is contacted by counsel and an appointment made. The following procedures are applicable to motions and special proceedings initiated by an order to show cause signed in chambers. After an order to show cause presented in chambers has been signed, the original or a digital copy bearing the Justice’s signature will be returned to the movant. Make Service The copies of the papers must then be served in accordance with the terms of the order to show cause. An affidavit of service must be prepared and executed. Tender the Papers for Filing with the Filing Fee The movant must file a digital copy the executed order to show cause, the supporting motion papers, and the affidavit of service for filing through the portal on the Court’s website. Filing with the General Clerk’s Office must be accomplished no later than 10:00 A.M. on the day preceding the return date. Unless the movant is exempt from the payment of the fees of the clerk (see e.g. CPLR 1102[d], 8017), the motion papers must be accompanied by payment of the $45 filing fee required by CPLR 8022(b). If the papers are mailed or sent to the General Clerk’s Office by delivery service, the court suggests that payment of the fee be made by check or money order made payable to “Clerk of the Court.” If the correct fee is not tendered, the filing will be rejected and the motion will not be heard.
All motions and special proceedings are returnable at the Appellate Division Courthouse in Brooklyn. Answering and reply papers must be filed with the Court in digital form through the portal on the Court’s website. No appearance is permitted on the return date of motions. All motions are submitted without oral argument (22 NYCRR 1250.4[a]). The rule is the same for special proceedings, except habeas corpus proceedings and those specifically enumerated in § 1250.13 of the Practice Rules of the Appellant Division (22 NYCRR 1250.13).