Leave a Reply Want to join the discussion? Feel free to contribute! Leave a Reply Cancel reply Your email address will not be published. Comment Notify me of follow-up comments by email. Will I be permitted to argue my motion? Can I seek an adjournment of a motion? Can I otherwise obtain more time to file answering or reply papers? I need to bring a motion before the Court by order to show cause; what should I do? My appeal was dismissed for failure to perfect; what do I need to do to reinstate the appeal?
Comment Share your thoughts, comments or suggestions as part of the Court's Excellence Initiative. Justices of the Court Hon. Gerald J. Whalen Presiding Justice Hon. Nancy E. To explore this concept, consider the following Order to Show Cause definition. Where a motion starts the parties on equal footing, as far as the courts are concerned, an OSC requests that the court make a decision, ordering the other party to appear and provide information and evidence why the order should not be made.
In many jurisdictions, an OSC is commonly used in child custody matters that require a temporary order to keep the children safe while the custody proceeding moves along at its usual pace. Orders to Show Cause are also commonly used in housing matters, as well as contempt matters. A party filing an OSC is presenting to the judge a request for some type of immediate relief, providing reasons why the court should grant the order. An OSC brings quicker relief, as it shortens the time required for providing notice to the other parties in the case.
Unlike a notice of motion, which is served first then filed, an order to show causes is filed first then served. It is filed before serving because the court sets the motion date, the amount of time for service of the motion, and how the order to show cause must be served. The method of service in an order to show cause is jurisdictional, and serving by any other means than specified deprives the court of jurisdiction to grant any relief, even if the means of service is better than set forth in the motion.
Because an order to show cause is filed first and signed by a judge before it is served, it is also the method by which an emergency order is obtained. When an emergency order such as a temporary restraining order is made, at least 24 hours notice to the other side is normally required.
In some instances, no notice of the request for an interim order is required, but these are limited in scope. The non moving party is authorized to cross move the Court for affirmative relief by filing a cross motion. It is otherwise identical in format to a notice of motion. Absent a cross motion, the court is without authority to grant affirmative relief to the non moving party and the non moving party is limited to opposing the motion. In order for a court to full consider a motion, it needs to be fully submitted.
Each side has its own set of papers filed with the court. The motion in chief is the motion filed by the moving party, which is either a notice of motion or an order to show cause. This is the set of papers that makes the actual request for a court order, and the reasons why the order should be granted. If the non moving party simply opposes the motion, they file an affidavit in opposition.
If the non moving party wants to request affirmative relief in their favor, they file a cross motion. The cross motion acts as both an affidavit in opposition to the motion in chief and in support of the cross motion. An affidavit in opposition is the opposition papers filed by the non moving party. This set of papers argues why the motion should not be granted. If a cross motion is filed, then the affidavit has two functions; it acts as both an affidavit in opposition and an affidavit in support of the cross motion.
The reply is the last word given to the moving party. It is designed to allow the moving party to respond to the claims made in the affidavit in opposition.
New relief cannot be requested in a reply. Nor can new facts be asserted outside those necessary to respond to the affidavit in opposition. When the non moving party has filed a cross motion, the reply acts as both a reply in support of the motion and an affidavit in opposition to the cross motion.
If a cross motion is filed, the party filing the cross motion is authorized to file a reply in response to the affidavit in opposition to the cross motion. It consists of an affidavit, an affirmation, and exhibits, if any. Sur-replies are not normally allowed. They are not authorized except when the Court gives express permission. Such permission is rarely granted and occurs only upon extraordinary circumstances.
In a matrimonial action, many times the relief requested in the action itself cannot wait until the final judgment. When pre judgment orders are necessary, they are available by filing a pendente lite motion.
These motions are made on an expedited basis, and not all relevant facts are known, whenever practical, they try to maintain the status quo until a final determination can be made at trial. Typical pendente lite motions will request one or more of the following:. One of the core concepts of the CPLR is liberal discovery. Should a party fail to comply with discovery requests, there are several options available.
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