New York State Bill A03119

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Summary of Bill A03119

BILL NO   A03119                                                               
                                                                               
SPONSOR   Weprin                                                               
                                                                               
COSPNSR                                                                        
                                                                               
MLTSPNSR                                                                       
                                                                               
Amd RR2214, 2215 & S2103, CPLR                                                 
Increases the amount of time for the filing of motions, affidavits, exhibit and
memoranda of law unless some other time is provided by the rule of the local   
judge or justice; calculates such time limits by "business days" excluding     
weekends and holidays within the time limits.                                  

Actions on Bill A03119

BILL NO   A03119                                                               
                                                                               
01/28/1999referred to codes                                                    
01/05/2000referred to codes                                                    

Votes on Bill A03119

Vote record not found for bill A3119

Memo on Bill A03119

BILL NUMBER: A3119                                                             
                                                                               
PURPOSE OR GENERAL IDEA OF BILL:                                               
                                                                               
Amendment  of  CPLR  2214,  2215,  and  2103  (b) to provide a lengthier       
schedule for service of motion papers, and to address other problems  in       
connection with motion practice.                                               
                                                                               
SUMMARY OF SPECIFIC PROVISIONS:                                                
                                                                               
The statute as amended would:                                                  
                                                                               
-  Utilize  the  "business  day"  concept regarding the time for serving       
papers ("Business day" shall mean "any day other than  Saturday,  Sunday       
or a Public Holiday as defined by section 24 of the General Construction       
Law.");                                                                        
                                                                               
-  Require that schedules for motions depend on the nature of the motion       
(For motions brought under Article 30 or 31, the schedule would  be  set       
for  15 {answering papers: seven, and reply: two} business days prior to       
return date.  For other motions, except those for  which  specific  time       
limitations  are  provided,  the schedule would be set for 20 {answering       
                                                           __                  
papers:  nine, and reply: two} business days prior to return date.);           
                                                                               
- Require that cross-motions be served nine  {answering  papers:    two}       
business days prior to return date;                                            
                                                                               
-  Permit  cross-motions  for  summary  judgment only where the original       
motion is brought pursuant to Rule 3212; and,                                  
                                                                               
- Require, subject to local administrative rule, that motion  papers  be       
furnished to the court at least two business days prior to return date.        
                                                                               
JUSTIFICATION:                                                                 
                                                                               
This  legislation  would  provide a uniform, and lengthier, schedule for       
service of motion  papers,  and  address  a  number  of  other  problems       
identified in connection with motion practice.                                 
                                                                               
The  initial  concern is that the time periods under present provisions,       
permitting motions on notice as  short  as  eight  days,  with  opposing       
papers  due  in  six  days, are too short.  With intervening weekends, a       
party opposing a motion might have as little as  five  working  days  to       
prepare  papers,  and  less  time  if  a  holiday  intervenes.   This is       
obviously unfair, since the moving party may have  taken  a  substantial       
amount  of  time  to  prepare  papers.    The  net result: disputes over       
adjournment and expenditure of judicial effort on scheduling matters.          
                                                                               
A more reasonable and extended schedule should be fixed by the CPLR.   A       
party requiring faster relief may always proceed by way of order to show       
cause.  But absent such necessity there is no reason why motion practice       
should be a desperate race against time.                                       
                                                                               
Accordingly,  the  first  goal is to provide for reasonable time periods       
for service of answering and reply papers.  In that regard, the  concept       
of "business day" makes sense.  A "business day" would be defined as any       
day except Saturday, Sunday, or a public holiday as set forth in General       
Construction Law.                                                              
                                                                               
Next,  this bill would provide that schedules, as in the federal courts,       
depend on the nature of the motion.  For motions under Articles  30  and       
31  (i.e.,  technical  pleading  motions  and  discovery  disputes)  the       
schedule would be set at 15 business days prior to the return  date  for       
service of the motion papers, and seven and two days prior for answering       
and reply papers.                                                              
                                                                               
For  other motions, which include, inter alia, substantive motions under       
Article 32 and motions as to provisional remedies, the schedule would be       
lengthened to 20 business days prior to the return date,  nine  business       
days for answering papers, and two business days for reply papers.             
                                                                               
This  should  allow motions to be served and fully presented without the       
necessity of having judicial or court personnel intervene on  issues  of       
routine adjournments.                                                          
                                                                               
The bill keeps in place the recognized practice of adding five days (not       
business  days)  for  service by mail, as well as the existing provision       
regarding adding one business day for service by overnight  mail.    But       
the  bill  would  expand  those  provisions to cover answering and reply       
papers.                                                                        
                                                                               
The bill also would require that service  of  papers  upon  an  attorney       
personally  or  by electronic means must be completed by 5 P.M.  This is       
intended to prevent delivery of papers after normal business hours.            
                                                                               
The bill is also intended to address instances where  cross-motions  for       
summary  judgment  have  been  served,  on short notice, when the relief       
sought by the initial motion related to a discovery dispute.    This  is       
"sharp   practice"  which  ought  to  be  eliminated.    Accordingly,  a       
cross-motion for summary judgment should only be  interposed  where  the       
main  motion  sought  such relief. Otherwise, the generally unrestricted       
use of cross-motions would still be permitted.                                 
                                                                               
In order to avoid unduly  short  time  periods  for  cross-motions,  the       
schedule  would  be  set  so that they must be served nine business days       
before the return date, with opposing papers two  business  days  before       
the  return date.   Reply papers on cross-motions, as a matter of right,       
would  be  eliminated  because  they  are  believed  to   be   generally       
unnecessary.    Of course, such papers could be served with leave of the       
court.                                                                         
                                                                               
Finally, the proposal would codify the practice followed in many  courts       
by  requiring  the furnishing of papers to the assigned justice two days       
prior to the return date.  This would allow time for review and  a  "hot       
bench"  on  the return date.  In counties such as New York County, where       
this is not the practice, the local rule  providing  for  submission  of       
papers to a central motion part would prevail.                                 
                                                                               
These  changes  will  result in better motion papers because of adequate       
time  to  prepare,  obviate  squabbles  on  timing  and   requests   for       
adjournment, and generally improve motion practice.                            
                                                                               
PRIOR LEGISLATIVE HISTORY:                                                     
                                                                               
A. 2620 of 1998.                                                               
                                                                               
FISCAL IMPLICATIONS:                                                           
                                                                               
None                                                                           
                                                                               
EFFECTIVE DATE:  First of January following enactment.                         
                                                                               

Bill A03119
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