Return Dates for Motions and Other Requirements

Motion papers can be served by any adult who is not a named party to the action.  CPLR 2103(a).

PERSONAL SERVICE

When a notice of motion is personally delivery to the attorney’s office, allow a minimum of at least 8 days before court date, 2 days for an answer and no reply is allowed.  Service of cross-motion must be made 3 days before court date.  (CPLR 2214(b); 2103(b)(1).

FAX

When the motion is faxed, allow a minimum of at least 8 days before court date, 2 days before court date for an answer and no reply is allowed.  Service of cross-motion must be made 3 days before court date.  CPLR 2103 (b)(5); CPLR 2214.

MAIL

When the motion is mailed through regular service, allow a minimum of at least 13 days before court date, 2 days before court date for an answer and no reply is allowed.  Service of cross-motion must be made 6 days before court date.  CPLR 2103(b)(2); CPLR 2214

OVERNIGHT SERVICE

When the motion is mailed overnight, allow a minimum of at least 9 days before court date, 2 days before court date for an answer and no reply is allowed.  Service of cross-motion must be made 4 days before court date.  CPLR 2103(b)(6); CPLR 2214

PERSONALLY DELIVERING MOTION DEMANDING ANSWER AT LEAST 7 DAYS BEFORE COURT DATE

Allow a minimum of at least 16 days before court date, 7 days before court date for an answer and 1 day for reply.  Service of cross-motion must be made 7 days before court date.  CPLR 2103 (b)(5); CPLR 2214(b); CPLR 2215

MAILING MOTION PAPERS DEMANDING ANSWER 7 DAYS BEFORE COURT DATE

Allow a minimum of at least 21 days before court date, 7 days before court date for an answer and 1 day for reply.  Service of cross-motion must be made 10 days before court date.  CPLR 2103(b)(2); CPLR 2214(b) and 2215.

MAILING MOTION PAPERS OVERNIGHT DEMANDING ANSWER 7 DAYS BEFORE COURT DATE

Allow a minimum of at least 17 days before court date, 7 days before court date for an answer and 1 day for reply.  Service of cross-motion must be made 8 days before court date.  CPLR 2103(b)(6); CPLR 2215; CPLR 2214(b)

***If motion papers are not served or timely filed, they will not be “read in support of, or in opposition to the motion, unless the court for good cause shall direct otherwise.” CPLR 2214(a); Keller v. McDonald, 85 A.D.3d 1356, 1357 (3d Dep’t 2011).

***CPLR 2309 (c) requires affidavits notarized outside of New York be accompanied by a certificate, authenticating the person administering the oath.  Exceptions include an ex-parte motion without notice to the other parties OR on notice.  Fredette v. Town of Southampton, 95 A.D.3d 940, 942 (2d Dep’t 2012.)

***There are no minimum return dates on Orders to Show Cause.

Failure to Serve Complaint

Plaintiff’s have 120 days from the time they file the complaint with the County Clerk to serve the Defendant.  When the Plaintiff fails to serve, the Defendant may move to dismiss the complaint under CPLR 306-b.  “Although Plaintiff’s failed to properly effect service of process, his [Plaintiff’s] cross motion for an order extending his time to serve the summons and complaint should have been granted in the interest of justice.  (CPLR 306-b.)  Interest of justice requires a careful judicial analysis of the factual setting of the case and a balance of the competing interests of the parties.” (Leader v. Maroney, Pnzini & Spencer, 97 N.Y.2d 95, 105 [2001]).

Service of Process

“While a process server’s sworn affidavit of service ordinarily constitutes prima facie evidence of proper service (Bankers Trust Co. of Cal. v. Tsoukas, 303 A.D.2d 343, 343-344), where there is a sworn denial that delivery to the Defendant was accomplished, the affidavit of service is rebutted and the Plaintiff must establish jurisdiction by a preponderance of the evidence at a hearing.” (internal citations omitted.)  Toyota Motor Credit Corp v. Lam, 93 A.D.3d 713 (2d Dep’t 2012.)  Unless the process server is unavailable to testify at the hearing, the process server’s written affidavit is deemed hearsay, and it is inadmissible at the hearing.  CPLR 4531; Anton v. Anton, 101 A.D.3d 819 (2d Dep’t 1984).  It is not admissible as a business record because it was prepared primarily in anticipation of litigation.

Note that if the process server does appear at the hearing, the affidavit may be used to:

1) Refresh the process server’s recollection, or

2) As evidence under the past recollection recorded exception to the hearsay rule, provided the server cannot totally and accurately recall the details of effectuating the service.  Alexander, Practice Commentaries, McKinney’s Cons Law of N.Y. Book 7B, CPLR 306:20 at 451-52.

DEFAULT JUDGMENT

Should a New York court submit a default judgment against a Defendant, that party has one year to vacate the default, upon a successful showing of reasonable excuse, lack of prejudice to the Plaintiff and an affidavit of merit to Defendant’s defense.  Unless the Defendant can show he was never properly served (in which case there is no time restraint), a court will deny the motion if an attempt to vacate was made after the one year had passed.  CPLR 5015(a)(1).  See Cuadra v. City of New York

Forum Selection Clauses

Forum selection clauses are prima facie valid and will not be set aside except for fraud or overreaching or if enforcement would be so unreasonable and unjust as to make a trial in the selected forum ‘so gravely difficult and inconvenient that the challenging party would, for all practical purposes, be deprived of his or her day in court.’ (British W. Indies Guar. Trust Co. v. Banque Internationale, 172 A.D.2d 234.)