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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.
BILL NO A03119
01/28/1999referred to codes
01/05/2000referred to codes
Vote record not found for bill A3119
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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