FREQUENTLY ASKED QUESTIONS - CIVIL MOTIONS
Answers to these frequently asked questions are general and are not intended to provide legal assistance. Please consult the Court's Rules and applicable statutory provisions in preparing papers for submission to the Court of Appeals.
Civil Motions for Leave to Appeal
Q: Is there a time limit for moving for leave to appeal to the Court of Appeals?
A: A motion for leave to appeal must be served within 30 days after service of the judgment or order sought to be appealed from with notice of its entry (CPLR 5513[b]).
Service by mail is complete upon "mailing" -- by depositing the paper in a post office or United States Postal Service official depository (a post office box) within the State of New York in a properly addressed postage-paid envelope (CPLR 2103[b], [f]).
If the judgment or order was served by mail, an additional 5 days is permitted (CPLR 2103). If the judgment or order was served by overnight mail, one additional day is permitted (CPLR 2103). If a timely motion for leave to appeal to the Court of Appeals was made at the Appellate Division, the 30 day period runs from service of the Appellate Division order denying the motion for leave to appeal with notice of its entry (CPLR 5513[b]; see also Matter of Park East Corporation v Whalen, 38 NY2d 559, 560 ).
Q: What is notice of entry?
A: CPLR 5513(b) provides that a motion must be made within 30 days after "service by a party of the order to be appealed from with written notice of its entry." Service by a party of an Appellate Division order or judgment stamped "entered" with the date of entry and the name of the clerk of the court where the order was entered, together with a cover letter properly describing the attached Appellate Division order or judgment, constitutes service of the order with notice of entry that commences the running of time to move for leave to appeal (Norstar Bank of Upstate N.Y. v Office Control Sys., 78 NY2d 1110 ; see also Matter of Reynolds v Dustman, 1 NY3d 559 ).
Q: What does a motion for leave to appeal look like?
A: Rule 500.22(b) provides that a motion shall be a single document, bound on the left. The motion papers are a "booklet" that must contain the following:
(1) a notice of motion;
(2) a statement of the procedural history of the case, including a statement of the events that establish that the motion is timely;
(3) a statement of jurisdiction, including that the order or judgment sought to be appealed from is a final determination or within the special class of nonfinal orders (CPLR 5602[a]) appealable to the Court of Appeals;
(4) a concise statement of the questions presented for review, including that the issues raised are preserved;
(5) if necessary, a corporate disclosure statement (Rule 500.1[f]);
(6) copies of: the order or judgment sought to be appealed from with notice of entry and all relevant orders, opinions or memoranda rendered in the courts below.
The statements required in items (2) through (5) generally are provided in the form of a legal brief, but can be provided in an attorney affirmation or affidavit form.
The movant must file proof of service of the required number of copies of the moving papers on each other party (Rule 500.22[c]).
The movant must file a copy of the record or appendix used in the court below and a copy of each party's Appellate Division briefs (Rule 500.22[c]). The Appellate Division briefs and record or appendix should not be attached to the motion papers and need not be served on each other party.
Q: May I include a memorandum of law in support of my motion for leave?
A: A memorandum of law in support of a motion is permitted, so long as it conforms with the single document rule and contains the items required by Rule 500.22(b)(2)-(5).
Q: Do the motion papers have to be professionally bound?
A: No, but the motion papers must be securely bound on the left, without plastic covers or any metal fasteners or similar hard material that protrudes or presents a bulky surface or sharp edge. Secure non-protruding staples are permitted, and may be covered with tape to insure that they do not injure Court personnel.
Q: Should exhibits be attached to the motion papers?
A: Yes. Exhibits required to be attached include the order or judgment sought to be appealed from with notice of entry and copies of all relevant orders, opinions or memoranda rendered in the courts below.
Q: Is there a page or word limit for a motion?
A: No, but conciseness is encouraged.
Q: What are the typeface requirements?
A: Computer-generated papers should be in Times Roman, Courier, or equivalently spaced fonts. Bold type or all capital type is not permitted, except in headings. Times Roman should be 14-point type, footnotes no less than 12-point type. Courier should be 12-point type, footnotes no less than 10-point type. Margins should be one inch on every side.
Q: How many copies of the motion booklet must I file and serve?
A: Rules 500.21(d), (g); 500.23(a); and 500.24(a) provide:
Motions for permission to appeal: file original plus 6 copies, serve 2 copies.
Motions for reargument: file original plus 6 copies, serve 2 copies.
Amicus motions: file original plus 1 copy, serve 1 copy.
Any motion with proof of indigency required by Rule 500.21(g): file original, serve 1 copy.
Q: How do I set a return date?
A: Return dates are on Mondays, even when the Court is not in session. If a Monday is a legal holiday, the next business day will be a return date (Rule 500.21 [a], [b]). CPLR 5516 provides that a motion for permission to appeal must be noticed at least eight days and not more than fifteen days after the notice of motion is served. If there is no motion day during that period, it must be noticed for the first motion day thereafter. Accordingly, if the motion papers are served personally, count eight days and pick the next Monday as the return date. If the motion papers are served by overnight delivery service, count nine days (eight plus one for overnight delivery) and pick the next Monday as the return date. If the motion papers are served by regular mail, count thirteen days (eight plus five for mailing) and pick a Monday not more than twenty days after service of the notice of motion (fifteen days plus five for mailing). In most cases of service by mail, counting thirteen days and picking the next Monday will be the only acceptable return date.
Q: What is the due date for filing motion papers?
A: Motion papers must be filed no later than noon on the Friday before the return date (Rule 500.21[c]). Filed means received in the Clerk's office.
Q: When must I file my opposition to a motion seeking leave to appeal?
A: Opposition papers with proof of service must be filed in the Clerk's office on or before the return date of the motion (Rule 500.21[c]). Filed means received in the Clerk's office.
Q: Are adjournments of the return date available upon parties' consent?
A: No adjournments are permitted other than in those limited instances provided by statute (Rule 500.21[a]; CPLR 321[c] and 1022).
Q: May I reply to opposition papers?
A: There is no reply to opposition papers (Rule 500.21[c]). Post-submission communications are governed by Rule 500.7.
Q. Is there a fee to file a motion?
A: Unless an exception applies (Rule 500.3), the movant must provide a $45 fee by submitting an attorney's check, cashier's check or money order payable to "State of New York, Court of Appeals" (Rule 500.3[b]). Personal checks are not accepted. No fee is required to oppose a motion for leave. The $45 fee is required for a cross-motion, a motion seeking amicus relief, and a motion seeking reargument in civil matters (Rule 500.3[b]).
Q: How do I know if the Court has decided my motion?
A: Decisions are posted on the Court's website at 9 a.m. on the day of release. Decision days are usually Tuesdays and Thursdays during each Court session and the week following the session. Orders determining motions are mailed to each party.
Q: How do I enter the Court of Appeals order deciding a motion?
A: Rule 500.21(h) states: "The original of an order of the Court of Appeals issued on a motion decision is filed in the clerk's office automatically by the clerk of the Court and is entered on the date of the decision. There is no procedure for filing additional papers, such as proof of service of a copy of the order with notice of its entry upon adverse parties. If necessary, such papers may be filed in the office where papers submitted to the court of original instance are filed."
Q: My adversary was awarded costs on a motion. Do I send a check to the Court of Appeals for those costs?
A: No, costs upon a motion are payable directly to the winning party pursuant to CPLR 8106.
Motions for Amicus Curiae Relief
Q: Is there a deadline for moving for permission to file an amicus curiae brief on a pending appeal?
A: Yes, a motion seeking to appear amicus curiae on a normal course appeal must be made returnable no later than the session before the appeal is scheduled for oral argument (Rule 500.23[a]). Motions are only returnable on Mondays (Rule 500.21[a]). For example, if the appeal is scheduled for oral argument in a February session, the motion must be returnable no later than the second Monday of a two-week January session. The Court's session calendar is available at www.courts.state.ny.us/ctapps.
Q: How many copies of the amicus motion and brief are served and filed?
A: Proposed amicus must file an original and one copy of the motion papers, accompanied by one copy of the amicus brief; proposed amicus must serve one copy of the motion papers and brief on each party (Rule 500.23[a]). The proposed brief should not be attached to the motion papers. If the motion is granted and the brief is accepted for filing, amicus will be directed to file 24 additional copies of the brief and serve two additional copies on each other party. As an alternative, proposed amicus may file the original and 24 copies of the brief and proof of service of 3 copies with the motion seeking amicus relief.
Motions for Reargument
Q: Is there a time limit for moving for reargument?
A: Rule 500.24 provides that a notice of motion seeking reargument must be served not later than 30 days after the appeal or motion sought to be reargued has been decided, unless otherwise permitted by the Court.