Motion Practice “Tips” From Brooklyn Judge

In Oborski v. Marjam Supply Co., Inc., Supreme Court, Kings County Judge Francois Rivera offered what can fairly be characterized as motion practice “tips” (which are, really, a reminder to follow the court’s rules when engaging in motion practice):

As a preliminary matter the court will discuss the motion papers and the deficiencies contained therein. A “notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor. Relief in the alternative or of several different types may be demanded” (CPLR 2214). “The notice of motion will specify the relief the movant is seeking, and … also specify the grounds for the relief (Patrick M. Connors, Practice Commentaries C2214:3 Contents of Notice of Motion).
Furthermore, the New York Court Rules (N.Y.CRR) require that “affidavits shall be for a statement of the relevant facts, and briefs shall be for a statement of the relevant law” (see22 NYCRR 202.8[c] ).
The instant motion contains several defects that violate the CPLR and the NYCRR and create an overall confusing and disorganized set of papers. First, the notice of motion fails to include any provision of law or rule that the movant is seeking relief under. In fact, the first time that the Court is apprized of the defendant moving under CPLR 3211(a)(1),7501 and 7503 is on page eleven and five, respectively, of the memorandum of law. Second, the notice of motion seeks relief in the alternative, however the affidavit of counsel for the defendants speaks in the conjunctive. Third, the Court is not apprized of whether issue has been joined until the fourth page of the memorandum of law. Fourth, the affidavit of counsel is utilized solely for the admission of documents, it fails to state a procedural or factual history. Moreover, several of the documents annexed to the attorney affirmation are what appear to be parts of a motion brought for the same relief.However, there is no explanation within the attorney’s affirmation as to the history of those papers and whether this court made a prior determination as to that motion. Lastly, the papers are not bound together, rather the notice of motion, the affidavit of counsel, the affidavit of Carmen Arguelles and the memorandum are all separate and distinct.

Ultimately, the court disregarded the “panoply of errors” in defendant’s motion under CPLR 2001, noting that plaintiff did not object, the law was cited in the memorandum, and the plaintiff opposed the motion on its merits.

After denying defendant’s motion to dismiss, the court set the matter for a hearing, and concluded with a reminder “that any and all submissions to the court shall be in compliance with the CPLR and all applicable Court Rules.”

This decision serves as a reminder, though, that knowing the substantive law is necessary, but not sufficient, for successful motion practice.

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