*My Additional Notice of Motion Language – In light of 2007 Amendments.

It has come to my attention that in State Court actions some people are still not using (possibly due to the reliance on forms) the language on notices of motion that require an adversary to serve a cross motion seven days before the return date (instead of three days) and to bring to an adversaries attention the new rules governing the timing for service by mail or overnight delivery of cross motions (although my PLEASE TAKE FURTHER NOTICE speaks to answering papers as well.) I suggest the following (and include the statutory language below.) Any comments regarding changes will be appreciated.

PLEASE TAKE FURTHER NOTICE that pursuant to Rule 2214(b) of the CPLR, answering affidavits, affirmations or any notice of cross-motion, with supporting papers, if any, shall be served at least seven days before the time this motion is noticed to be heard.

PLEASE TAKE FURTHER NOTICE that pursuant to Rule 2215 of the CPLR, if such answering affidavit, affirmation or notice and any supporting papers are served by mailing, as provided in paragraph two of subdivision (b) of rule 2103, they shall be served three days earlier than as prescribed in Rule 2215; and if served by overnight delivery, as provided in paragraph six of subdivision (b) of rule 2103, they shall be served one day earlier than as prescribed in Rule 2215.

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Rule 2214. Motion papers; service; time.
(b) Time for service of notice and affidavits. A notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard. Answering affidavits shall be served at least two days before such time. Answering affidavits and any notice of cross-motion, with supporting papers, if any, shall be served at least seven days before such time if a notice of motion served at least sixteen days before such time so demands; whereupon any reply or responding affidavits shall be served at least one day before such time.

Rule 2215. Relief demanded by other than moving party.
At least three days prior to the time at which the motion is noticed to be heard, or seven days prior to such time if demand is properly made pursuant to subdivision (b) of rule 2214, a party may serve upon the moving party a notice of cross-motion demanding relief, with or without supporting papers; provided, however, that:
(a) if such notice and any supporting papers are served by mailing, as provided in paragraph two of subdivision (b) of rule 2103, they shall be served three days earlier than as prescribed in this rule; and
(b) if served by overnight delivery, as provided in paragraph six of subdivision (b) of rule 2103, they shall be served one day earlier than as prescribed in this rule.
Relief in the alternative or of several different types may be demanded; relief need not be responsive to that demanded by the moving party.

Rule 2103. Service of papers.
(b) Upon an attorney. Except where otherwise prescribed by law or order of court, papers to be served upon a party in a pending action shall be served upon the party’s attorney. Where the same attorney appears for two or more parties, only one copy need be served upon the attorney. Such service upon an attorney shall be made:

2. by mailing the paper to the attorney at the address designated by that attorney for that purpose or, if none is designated, at the attorney’s last known address; service by mail shall be complete upon mailing; where a period of time prescribed by law is measured from theservice of a paper and service is by mail, five days shall be added to the prescribed period; or

6. by dispatching the paper to the attorney by overnight delivery service at the address designated by the attorney for that purpose or, if none is designated, at the attorney’s last known address. Service by overnight delivery service shall be complete upon deposit of the paper enclosed in a properly addressed wrapper into the custody of the overnight delivery service for overnight delivery, prior to the latest time designated by the overnight delivery service for overnight delivery. Where a period of time prescribed by law is measured from the service of a paper and service is by overnight delivery, one business day shall be added to the prescribed period. “Overnight delivery service” means any delivery service which regularly accepts items for overnight delivery to any address in the state; or

4 responses to “*My Additional Notice of Motion Language – In light of 2007 Amendments.

  1. Lou:

    While I’d always used the first of those two paragraphs, I think putting the second one in also is a great idea. Never seen anyone do it yet. But I will in the future.

  2. Yeah, but CPLR 2215 only applies to cross-motions, so your second “take further notice” is too broad.

  3. I don’t disagree Daniel, as I mention in my post. “bring to an adversaries attention the new rules governing the timing for service … of cross motions (although my PLEASE TAKE FURTHER NOTICE speaks to answering papers as well.) But I think it does no harm.”

  4. Lou, I know we have discussed this but I still would feel safer following the 7 day rule on cross motions even if, contrary to the new rule’s requirement, the party hadnt (also) asked that notice of cross motion, along with any answering affidavits, be served 7 days prior. In other words, if the motion papers merely asked for answering papers, and not a cross motion, 7 days prior to the return date, would you really take a chance that the old 3 day rule applied. I think, just in the inerest of caution, it would be safer to follow the 7 day rule just to avoid the possibility that some judge might impose the 7 day rule even though not properly invoked by the moving party. I assume you disagree?

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