STATE OF NEW YORK
       ________________________________________________________________________
 
                                         3227
 
                              2001-2002 Regular Sessions
 
                   IN ASSEMBLY
 
                                   January 30, 2001
                                      ___________
 
       Introduced  by  M. of A. SCARBOROUGH, LUSTER -- Multi-Sponsored by -- M.
         of A. ORTIZ -- read once and referred to the Committee on Codes
 
       AN ACT to amend the civil practice law and rules, in relation to motions
         addressed to prior orders and repealing certain provisions of such law
         and rules relating thereto
 
         The People of the State of New York, represented in Senate and  Assem-
       bly, do enact as follows:
 
    1    Section  1. Rule 2217 of the civil practice law and rules, subdivision
    2  (d) as added by chapter 355 of the laws of 1986, is amended to  read  as
    3  follows:
    4    Rule  2217.  [Prior motion; ex] Ex parte motion; transfer of motion in
    5  action.
    6    (a) [Prior motion.  Any motion may be referred to a judge who  decided
    7  a prior motion in the action.
    8    (b)] Affidavit on ex parte motion.  An ex parte motion shall be accom-
    9  panied  by an affidavit stating the result of any prior motion for simi-
   10  lar relief and specifying the new facts, if any, that were not previous-
   11  ly shown.
   12    [(c)] (b) Transfer of motion.  If a motion is made to a judge  who  is
   13  or  will  be  for any reason unable to hear it, it may be transferred by
   14  order of [such judge or by written stipulation of the parties] the court
   15  to any other judge to whom it might originally have been made.
   16    [(d) Rules of the chief administrator of the courts. The chief  admin-
   17  istrator  may  by  rule exclude motions within a department, district or
   18  county from the operation of subdivisions (a) and (c) of this rule.]
   19    § 2. Rule 2221 of the civil practice law and rules is REPEALED  and  a
   20  new rule 2221 is added to read as follows:
   21    Rule  2221.  Motions  addressed to prior orders.   (a) A motion (1) to
   22  stay, vacate or modify an order, (2) for leave to appeal an order pursu-
   23  ant to subdivision (c) of section 5701, or (3) for leave to  reargue  or
   24  renew  a  prior  motion  shall  be  made returnable before the judge who
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD02759-01-1

       A. 3227                             2
 
    1  decided the prior motion, unless such judge is  unable  to  hear  it  by
    2  reason  of  departure from office, disability, disqualification or other
    3  extraordinary reason.
    4    (b) A motion for leave to reargue:
    5    (1) shall be identified specifically as such;
    6    (2)  shall  be  based  upon  material matters of fact or law allegedly
    7  overlooked or misapprehended by  the  court  in  determining  the  prior
    8  motion,  but  shall  not  include any matters of fact not offered on the
    9  prior motion; and
   10    (3) shall be made within thirty days after  service of a copy  of  the
   11  order determining the prior motion and written notice of its entry.
   12    (c) A motion for leave to renew:
   13    (1) shall be identified specifically as such;
   14    (2)  shall  be  based  upon facts not offered on the prior motion that
   15  would change the prior determination or shall demonstrate that there has
   16  been a material change in the law that would change the  prior  determi-
   17  nation; and
   18    (3)  shall contain reasonable justification for the failure to present
   19  such facts on the prior motion.
   20    (d) A combined motion for leave to reargue and leave  to  renew  shall
   21  identify separately and support separately each item of relief sought.
   22    (e)  The  court  in determining a combined motion for leave to reargue
   23  and leave to renew shall address separately  each  such  aspect  of  the
   24  motion.
   25    (f) If a motion for leave to reargue or leave to renew is granted, the
   26  court  may  adhere  to  the  determination on the original motion or may
   27  alter that determination.
   28    § 3. Subparagraph (viii) of paragraph 2 of subdivision (a) of  section
   29  5701 of the civil practice law and rules, as added by chapter 281 of the
   30  laws of 1999, is amended to read as follows:
   31    (viii)  grants a motion for leave to reargue made pursuant to subdivi-
   32  sion [(d)] (b) of rule 2221 or determines a motion for  leave  to  renew
   33  made pursuant to subdivision [(e)] (c) of rule 2221; or
   34    § 4. This act shall take effect immediately.

 
BILL NUMBER: A3227
 
SPONSOR: Scarborough (MS)

 
TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to motions addressed to prior orders and repealing certain
provisions of such law and rules relating thereto
 
 
PURPOSE:
 
The purpose of this measure is to clarify confusion in current law
governing motions addressed to prior orders.
 
 
SUMMARY OF PROVISIONS:
 
This bill amends Rule 2217 of the civil practice law and rules by elimi-
nating the definition of "prior action" and clarifying the definition of
"transfer of motion."
 
Rule 2221 is added to define rules governing "motion addressed to prior
orders," "motion for leave to reargue," "motion for leave to renew," and
"combined motions for leave to reargue and leave to renew."
 
 
JUSTIFICATION:
 
As now drawn, the law governing motions addressed to prior orders is
loose and flexible. A judge decides an order and attorneys have the
opportunity to renew a motion, reargue a motion, or take a motion upon
appeal.  The guidelines and time frames for filing motions to reargue
and renew are vague, often causing much confusion among bench and bar.
This bill would set up clear parameters concerning the nature of motions
addressed to prior orders, their purpose, when they are appropriate, and
when appeals therefrom can be taken. It further specifies that such
motions must be made within the thirty days after an order comes down on
a prior motion.
 
 
LEGISLATIVE HISTORY:
 
1993-94: Senate 7491 (Volker)  
Codes Committee
Assembly 10831 (Friedman)  
Rules Committee
 
 
FISCAL IMPLICATIONS: None.
 
 
EFFECTIVE DATE:
 
This act shall take effect immediately.