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February 13, 2024 Feature

Pretrial Preparation: The Who, What, Where, When, and, Most Importantly, How

Norina Melita
Motions make requesting anything from the court easier and can afford technical advantages if used correctly.

Motions make requesting anything from the court easier and can afford technical advantages if used correctly.

evdokiageorgieva via Getty Images

A smart man once told me that if you want something from the court, you need to ask for it. The way you ask for it is through a motion. And any motion needs to be supported by a section of your jurisdiction’s civil practice rules. (In this article, I will refer to New York’s Civil Practice Law and Rules (CPLR), as I am most familiar with those, but your jurisdiction will have its own rules.) For all your litigation requests, there is an applicable section. The same smart man also told me that if there isn’t an applicable section on point, just make it up—in other words, ask the court to grant your request at the court’s discretion. I’ve practiced for the past 11 years with this understanding, and it has made my nerves, and any uncertainty about the law, dissipate. The CPLR is my friend and the source I go to first when I have a question about how to proceed in a case.

I’ve tried to distill some of the common procedural concerns into easily distinguishable categories, although these are, by no means, the only concerns a diligent litigator should have or could be faced with while preparing for trial or in the trawls of litigating a matter. The “who,” “what,” “where,” and “when” will be discussed, and it is important to know, at the outset, that a concern with any of the categories can be addressed with a motion—this is the simple answer to the question of “how” to establish that one has the right party, the right cause of action, the right venue, and the right timing in proceeding with a case.

Who

Who can sue is equally important as whom to sue. A few introductory points should be discussed regarding capacity and a corporation’s pro se representation prohibition. If, for example, the plaintiff is suing in its capacity as a representative for an estate, the plaintiff must ensure that the letters of administration have been issued; otherwise, the plaintiff risks having the action dismissed for lack of capacity (see CPLR § 3211(a)(3)). Additionally, a corporation (and, equally, a limited liability company or a religious corporation) cannot bring a suit pro se but must, instead, use an attorney (CPLR § 321).

After drafting your summons and complaint and filing them with the county clerk along with your fees, you’re tasked with serving these papers on your adversary. While it may appear simple, service of the summons and complaint must be properly effectuated; otherwise, you risk having the action dismissed. The three common ways in which to serve are personally, by substitute service to a person of suitable age and discretion at the defendant’s residence, or what is known in the vernacular as “nail and mail” (see CPLR § 308(1), (2), and (4)). It is common for attorneys to file a motion for permission to serve by publication under CPLR § 308(5), alleging that service was impracticable under paragraphs one, two, and four of the section. However, it is imperative that the efforts undertaken by the attorney in trying to serve the defendant are outlined in such a motion, lest it be denied (CPLR § 316).

It is also equally important to know, although it is often a forgotten concept, that service is not completed until ten days after the affidavit of service is filed with the clerk (CPLR § 308(2)). Where a default judgment is sought, failure to have filed the proof of service with the clerk will delay and perhaps thwart a plaintiff’s remedy of default judgment (see CPLR § 320; see also Miller Greenberg Mgmt. Grp. v. Couture, 193 A.D.3d 1273, 2021 N.Y. slip op. 02566 (3d Dept. 2021)).

A motion to amend and supplement pleadings is a tool that all litigants must know well (CPLR § 3025). If you rushed to file the summons and complaint, you may have made some mistakes. You may amend your pleading once without leave if it is done within 20 days of its service or at any time before the period of time for responding to it expires, or within 20 days after service of a pleading responding to it (id.). If no responding pleading has been made to your complaint, there is little to no concern for the timeliness of such motion. However, once a responsive pleading has been filed, the 20-day requirement must be keenly adhered to. If the circumstances make it so that § 3025(a) does not apply, a motion must be made seeking the amendment (CPLR § 3025(b)). Amendments shall be freely given so long as there is no prejudice to the non-movant and the amendment is not palpably devoid of merit (Nyahsa Servs., Inc. v. People Care, Inc., 156 A.D.3d 99, 2017 N.Y. slip op. 07918 (3d Dep’t 2017)).

In the context of amending to add a party to the caption, be mindful of the interaction between CPLR § 3025 and § 203. If the action against the newly added defendant is time-barred, the only way the new party can be added is if the relation back doctrine applies. While various appellate departments may differ in their application, the relation back doctrine holds that a newly added claim or defendant must arise out of the same conduct, transaction, or occurrence; the newly added defendant must be united in interest with an existing defendant; or the defendant sought to be added reasonably should have known that the plaintiff made a mistake in failing to timely identify the proper parties (CPLR § 203).

In litigation, it is equally important to know where the information that might be helpful to your case could come from. To that effect, knowing who and how to subpoena witnesses and documents is paramount. Article 23 of the CPLR covers procedure regarding the issuance of subpoenas. While they can be issued with or without a court order, when the information is requested to be certified or obtained from a municipal corporation or officer thereof, a motion for such a subpoena must be made with at least one day’s notice to the person having custody of the record (CPLR §§ 2302(b), 2307). Procedurally, service of a subpoena must be done in the same manner as a summons and complaint, and non-party witnesses must be provided with a $15 witness fee and mileage to travel from their residence to the place of the deposition at the time they are served with the subpoena requiring their appearance.

What

New York has only a notice pleading requirement for its pleadings. This means that pursuant to CPLR § 3013, the pleading must only be sufficiently particular to give the court and the parties notice of the transactions or occurrences intended to be proved and the material elements of each cause of action. In fact, even pleadings that are “pathetically drawn” or “reek of miserable draftsmanship” may be saved under New York’s liberal pleading requirement (Cmt. to CPLR § 3013, C3013:6). When faced with a motion to dismiss for failure to state a cause of action under CPLR § 3211(a)(7), therefore, the diligent litigator must remember that remedies exist short of dismissal to supplement or clarify the pleadings (see CPLR §§ 3041, 3024). However, it is important to note that under CPLR § 3016, where a cause of action is based on fraud or misrepresentation, it requires specific, detailed pleading (CPLR § 3016(b)).

Remember the liberality of CPLR § 3025 when seeking to amend a pleading to add or clarify causes of action. In response to a motion to dismiss, a cross-motion to amend is a great strategy.

Where

Article 5 of the CPLR covers venue considerations. Generally, venue will be appropriate in any county in which either party resides (see generally, CPLR § 503). However, one must be mindful that certain actions must be venued in a particular county. For example, in an action arising out of a consumer credit transaction, defined by 15 U.S.C. § 1679(a), the place of trial must be the county in which the defendant resides if the defendant resides within the state (CPLR § 503(f)). The reason this is mentioned out of all other causes of action is because the CPLR specifically authorizes a clerk to reject a pleading in a consumer credit transaction if venued improperly (see CPLR § 513). Procedure for motion to change venue is outlined in CPLR § 511.

When

There are a number of time constraints in the CPLR. In fact, every procedure inherently contains time restrictions. Aside from needing to be aware of the statutes of limitations for the numerous causes of action, the diligent litigator will be helped by the knowledge of several procedural sections that are time sensitive (see generally, CPLR, art. 2). If the statute of limitations is missed, are you completely barred? The answer is a resounding “it depends.” CPLR § 2001 permits a court to forgive any mistake, omission, defect, or irregularity upon just terms, as long as a substantial right of a party has not been prejudiced. In fact, the practice commentaries explain that in an enlightened system of civil procedure, such liberality is essential, as form should not be elevated over substance. The party on whom the paper is served shall be deemed to have waived the objection to any defect in form unless, within 15 days after the receipt thereof, the party on whom the paper is served returns the paper with a statement for the particular objections (see CPLR § 2001). Additionally, CPLR § 205 provides important safeguards for actions that have been terminated in specific ways, which would permit the plaintiff to file a new action that otherwise would be time barred, where applicable.

It is equally important to know the time in which certain motions must be made before certain rights and advantages are waived. For example, under CPLR § 320, if an answer is received beyond the allotted CPLR time, defendants must make an objection to such a tardy answer within 15 days of receipt thereof or otherwise waive their right to do so (CPLR § 2101(f)). A great advantage that can be lost is that of a defendant who was not served within the allotted CPLR time frame. While an affirmative defense of lack of service can be asserted in an answer, the advantage is lost if a motion to dismiss upon that ground is not made within 60 days of the answer (CPLR § 3211(e)). Conversely, in aid of plaintiffs’ counsels who failed to serve a defendant timely, a motion pursuant to CPLR § 306-b might be beneficial.

Certainly, a lot more and varied motions can be filed in the process of preparing for trial. But, if you’ve survived initial service, dismissal, amendment, and discovery motions, you might be ready to file your note of issue (CPLR §§ 3402, 3403). If a note of issue was filed with a preference for a bench trial, a party preferring a trial by jury now would have 15 days after service of the initial note of issue to make such a demand (CPLR § 4102).

How

Motions are governed by Article 22 of the CPLR. Generally, a motion must include a notice of motion, affidavit or certification by the attorney, affidavit of facts, and, perhaps, if you want to be helpful and the motion will not require an in-depth analysis of the facts, a proposed order. Unless you’re making a motion to extend the time to serve because you are unable to serve the defendant, the rule of thumb is always to make your motions on notice to the other side. That requires that you include a notice of motion with a return date with your motion papers. Some courts have motion terms, which would allow you to choose a predetermined return date. Others will direct you to perfect service pursuant to CPLR. Generally, CPLR § 2214 will be your best friend. CPLR § 2214 will direct you not only to the form of the notice but also to the time constraints of the motion and its service. If a notice of motion you receive contains CPLR § 2214(b) language on its face, it is important to oppose the motion within the allotted time. For a faster return date, you may use an order to show cause instead of a motion (CPLR § 2214(d)). If you intend to file an opposition and a cross-motion, the importance of a cross-notice of motion should not be underestimated. The timeline for such cross-motions, service thereof, and response thereto is outlined in CPLR § 2215.

Patience with the court is paramount. A court is permitted 60 days to render a decision on a motion (CPLR § 2219). If you are unhappy with the result of a motion, remedies short of appeal are outlined in CPLR § 2221. If you believe that the court overlooked or misapprehended any of the facts or law of your case, a motion for leave to reargue must be made within 30 days from the notice of its entry (CPLR §§ 2220, 2221(d)(3)). A motion to renew can be made based on new facts or a change in the law, but if the facts were not presented at the original motion, a reasonable justification for failure to present such facts in the prior motion is required (CPLR § 2221(e)).

Conclusion

Myriad issues can and do arise during litigation. Not being intimidated by the concept of a motion will make you a more confident attorney. Motions make requesting anything from the court easier and can afford technical advantages if used correctly. As always, it is important to perform your due diligence before requesting judicial intervention. If all good faith attempts at getting what you want from the other side have been exhausted, do not hesitate to make your request to the court. If you play your cards right, your case will be much stronger as the trial date approaches. If you are prepared as well as very fortunate, a motion may, indeed, result in a summary judgment that wins your entire case (CPLR § 3212).

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Norina Melita is currently the confidential law clerk to a Supreme Court Judge in Fonda, New York. Prior to that, she was the managing attorney and vice president of legal operations at a busy litigation firm in Albany, New York. Melita also teaches business law as an adjunct professor at the College of St. Rose.