EX PARTE APPLICATIONS

Concerning: Orders to Show Cause  /  Infant's and Other Compromise Orders / Ex Parte Applications and Related Applications on Notice (A Detailed Summary of Principal Applications)

All ex parte applications are to be submitted to the Ex Parte Office (Room 315) except in Commercial Division cases, in which the applications should be submitted to the Commercial Division Support Office (Room 119 A).  Attorneys submitting proposed orders to show cause or ex parte orders in electronically-filed cases must e-file such submissions as required by the Protocol on Courthouse Procedures for Electronically Filed Cases. Click here. Generally, a Request for Judicial Intervention must be filed if an ex parte application is the first instance of a request for relief in an action or proceeding or if the application is a self-contained one. The RJI may or may not require the payment of the standard RJI fee depending generally upon whether the application is a discrete one or will require ongoing judicial supervision of an action or proceeding. For more information on this, see Commencement of Cases.

A. ORDERS TO SHOW CAUSE

Proposed orders to show cause ("OSC") brought on in cases other than those in the Commercial Division must be submitted to Room 315 in the first instance.  The Ex Parte Office records the proposed OSC in the court’s computer system, as well as the names of the attorneys for the movant and other attorneys, if known and not previously recorded in the system, and assigns the case if previously unassigned.

The Ex Parte Office also reviews proposed OSC's for form, in a process similar to the initial examination of motions on notice by the Motion Support Office, prior to fee payment. All ex parte applications must comply with CPLR 2217(b). CPLR 6313(a) precludes the ex parte issuance of a temporary restraining order ("TRO") against a public officer, board, or municipal corporation of the State (which includes New York City) to restrain the performance of statutory duties. If an applicant seeks such relief, advance notice to the Corporation Counsel’s Office, the Office of the Attorney General, or agency counsel if the municipality is so represented is required.

Further, Uniform Rule 202.7 provides for notice except under certain circumstances. Specifically, pursuant to Uniform Rule 202.7 (f), upon an application for an order to show cause that seeks a temporary restraining order, the application must contain an affirmation demonstrating that there will be significant prejudice to the party seeking the restraining order by the giving of notice. In the absence of such prejudice, the affirmation must demonstrate that a good faith effort has been made to notify the party against whom the restraining order is sought of the time, date and place that the application will be made sufficient to permit the party an opportunity to appear in response to the application. It is the practice of this court that the applicant must notify the party against whom the restraining order is sought of the time and date that the application will be submitted to the Ex Parte Office. Further, counsel shall advise the adversary that he or she will inform the adversary of the place, date and precise time when the Justice will entertain the application. Once the papers have been submitted to the Ex Parte Office, applying counsel shall contact the Part of the Justice in question to determine when and where it will be convenient for the Justice to entertain the application. Counsel shall then promptly notify the adversary. Counsel shall not appear in the courtroom of the assigned Justice without having first made such an inquiry.

If the papers are satisfactory, staff in Room 315 will mark them so indicating.  The attorney seeking to present the proposed OSC shall then proceed to the County Clerk's cashier's office in Room 160, pay the $ 45 fee, receive a cashier's receipt stamp on the OSC, and return to Room 315 to submit it.

The clerks will advise the attorney who presents an OSC of any defects therein. The clerks will not purport to reject a proposed OSC (CPLR 2102 (c)), except as provided by Uniform Rule 202.5 (d), a statute or rule, or a specific order of the court. If counsel insists that an OSC be processed immediately regardless of advice by the clerk that the papers contain defects, except under the circumstances indicated, the clerk will process the papers.

A proposed OSC not of an emergency nature is reviewed expeditiously. If an OSC cannot be processed within a short time, the presenting attorney should return as instructed or send a clerk to Ex Parte in order to deliver the papers to the assigned Justice. If the proposed OSC requests immediate attention because of an emergency, an affidavit or affirmation is required explaining the nature of the claimed emergency. The Ex Parte Office will attend to the matter immediately and will ask counsel to remain. If oral argument of a motion brought on by OSC is sought, counsel must so indicate on the front of the proposed order. See Rule 202.8(d) of the Uniform Rules for the Trial Courts. Should the proposed OSC be signed, the Justice decides whether argument is appropriate and, if so, will indicate as much in the OSC. If the OSC contains a TRO or oral argument is directed, the motion should be made returnable directly in the IAS Part, usually on the customary argument day. Whether a motion brought on by OSC is made returnable in the Motion Support Office Courtroom (Room 130) or directly in the IAS Part, the movant is responsible for providing proof of service on the return date.

Once the OSC has been signed, the papers must be delivered to the Motion Support Office for further processing to ensure that the OSC appears on the proper motion calendar for the return date just fixed.

During absences of Justices, OSC's are handled by Ex Parte Justices.

Sometimes a party must submit an OSC to a Justice outside of normal court hours. There is a procedure in place to address such applications. See "Emergency Applications After Hours" on this site.

There are two problems that may arise from applications entertained by Justices outside of normal court hours. First, the existence of the application may never be recorded in the court computer. Second, parties may be concerned about the potential risk of judge-shopping. To avoid these problems, all such applications should be made returnable before the assigned Justice or, if there is none, in the Ex Parte Office for random assignment (not before the Justice who signs the OSC unless he or she is the already-assigned Justice). The papers should be delivered to Ex Parte as soon as possible after the application has been signed.

B. INFANT’S, INCOMPETENT’S AND WRONGFUL DEATH COMPROMISE ORDERS

Court approval is required when an action commenced by an infant or an incompetent or an action for wrongful death is settled. The approval will take the form of a compromise order. If an action is pending before the court (an RJI was obtained), the proposed order and accompanying affidavits should be submitted to the Ex Parte Office for review. Upon completion of the review, the Office will forward the papers to the Justice assigned to the case. If an action was commenced but no RJI was filed, the papers should be submitted to the Ex Parte Office along with an RJI so that the matter may be assigned to a Justice. If no action was commenced, an RJI is not required; the papers will be submitted to an Ex Parte Justice through the Ex Parte Office. 

C. OTHER EX PARTE APPLICATIONS AND RELATED APPLICATIONS ON NOTICE

Ex parte applications in addition to OSCs are filed in the Ex Parte Office, except in Commercial Division cases. Depending on their nature, these are either referred to an Ex Parte Justice or entered into the court’s computer and assigned to a Justice unless brought on in a previously-assigned action, in which event the application will be submitted to the assigned Justice. The following is a detailed summary of key ex parte applications processed by the Ex Parte Office and related applications on notice. (Applications for poor person status involving the self-represented are handled by the Office for the Self-Represented (Room 116)). A no-fee RJI will be required now as to various ex parte applications for which none was required prior to April 2011. Trial Court Rule § 202.6 (b). When a no-fee RJI is required, the application will not be assigned to an IAS Justice via CCIS.

Anonymous Caption Order and Sealing of File
This application should be sought by order to show cause containing a proposed TRO in which the applicant is accorded, pending a hearing on the motion, the right to obtain an index number and file an RJI using the Anonymous caption and restricted access to (sealing of) the file. County Clerk staff (Chief Deputy or Chief Clerk of Law & Equity) should be advised before this application is submitted so that the papers are not made public before a judge has time to act. The application will be referred to an Ex Parte Judge. If the TRO is approved, County Clerk staff should be immediately so advised so that the restriction can be carried out promptly. If sealing the file is not sought, the application to proceed under an Anonymous caption may be submitted ex parte without an RJI. (If an anonymous caption is obtained, but the file is not sealed, the public might be able to obtain information from the file that identifies the parties, thereby defeating the purpose of the anonymous caption order.) A party may seek to seal a file upon commencement without a request for an anonymous caption. As to this, see Sealing of File at Commencement below.

Attachment, Ex Parte Orders
An order of attachment: 1) secures identified property against removal or dissipation to provide security for an eventual money judgment; or 2) provides a jurisdictional basis over the case premised upon the presence of property in New York. The class of cases in which such an order may be granted is listed in CPLR § 6201. The order may be granted ex parte, including before service of a summons. CPLR § 6211.

The papers must contain a statement complying with CPLR 2217 (b). The plaintiff must also state whether any other provisional remedy has been sought or obtained in the case against the same defendant. CPLR § 6001. If there is any possible doubt about the matter, the applicant must provide a detailed explanation of the jurisdictional nexus to New York. If the matter is brought pursuant to CPLR § 6201(1), the moving papers should contain either a certificate as to the foreign and unqualified status of any corporate defendant, or an affirmation of counsel reciting that he or she spoke by phone with a representative of the Secretary of State (or the Banking Department where a bank is involved) and learned that the defendant is neither a New York corporation nor qualified to do business here, or, if defendant is an individual, the source of knowledge that the defendant is a non-domiciliary residing without the state.

Further, the moving papers must show that the case is one within CPLR § 6201. The papers must contain evidentiary proof of the claims being asserted and that it is probable that the plaintiff will succeed on the merits, and that the amount demanded exceeds all counterclaims known to plaintiff. CPLR § 6212 (a); David D. Siegel, New York Practice § 316, at 504-05 (4th ed. 2005). The proposed order should be submitted and it must specify the amount to be secured by the order of attachment, including interest, costs and sheriff's fees and expenses. CPLR § 6212 (a).

The plaintiff must give an undertaking in an amount to be fixed by the court, but not less than $500 (CPLR 6212 (b)). See CPLR Art. 25. The sheriff will levy upon the amount in issue, plus 14%, plus $ 400, to cover interest, poundage fees, and levy fees. The undertaking should be 5 % of the above total for each defendant, plus 5 % for the sheriff (up to $ 50,000).

Where an order is obtained ex parte (except one based upon CPLR § 6201(1)), it must provide that the applicant, within five days after levy on the property, shall move on such notice as the court shall direct to confirm the attachment. CPLR 6211 (a). In a case in which the order is based on CPLR § 6201(1), a garnishee's statement must be served and the plaintiff shall move within ten days after levy to confirm the order. CPLR 6211 (a).

Attachment, by Motion on Notice
An order of attachment may be sought by motion on notice. CPLR 6210. On a motion brought by order to show cause, the court may grant a TRO without notice prohibiting the transfer of assets by a garnishee (id.). The order of attachment must contain the provisions set out in CPLR § 6211(a).

On a motion on notice, the moving papers must satisfy CPLR § 6212(a) and provide for an undertaking for the TRO (CPLR 6212 (b)) (generally 5% of amount to be restrained). Professor Siegel states that, in regard to the application for a TRO in a motion on notice, an undertaking is discretionary. David D. Siegel, supra § 316 at 504.

Commission; Letters Rogatory
Where a deposition is sought of an out-of-state witness who may not or will not appear voluntarily, the parties may jointly agree to appoint an officer in the other state who would make an application to compel the testimony, or the deposing party must obtain from this court a commission which formally seeks cooperation of the court system of the other state. It is necessary since a court order from this state may have no force in another jurisdiction. David D. Siegel, § 360, at 589. A court in the other state should issue an order that will bind the witness and require his or her appearance. CPLR 3108. A commission to take testimony on oral questions is sometimes referred to as an "open commission" and one to take testimony on written questions as a "sealed commission."

If all parties to the New York action are in accord about the need for the deposition, they should sign a stipulation, in which event the deposing party may proceed ex parte. The deposing party should submit to the Ex Parte Office or Commercial Division Support Office a proposed order, a proposed commission, the stipulation, and a verified petition or in a pending case an affidavit/affirmation. The applicant should describe the nature of the action, the name and home or business address of the witness, and the nature of the testimony sought and why it is material and necessary. The papers should comply with CPLR 2217(b). If the parties do not agree, a motion on notice must be made.

The commission should be signed with the full signature of the Justice since it is intended to be operative in the other state and should be in a form to pass muster there without difficulty. In the alternative, the court may direct the County Clerk to issue the commission and the applying party would obtain the commission from the Clerk by presenting the signed order.

The letter rogatory is a similar device used to obtain testimony in a foreign country. There is no prescribed form for a letter rogatory. David D. Siegel, supra, at 590. A letter is granted on motion or stipulation. If the request is granted, an order is initialed by the court and, as with the commission, the letter is signed with a full signature. The court should not direct the County Clerk to issue and sign the letter as that may render the letter ineffective in a foreign jurisdiction expecting to see the signature of a judge on such a document.

The Uniform Interstate Depositions and Discovery Act (enacted in New York as CPLR 3119) may be in place in another state in which New York counsel seeks to take certain discovery. This would provide a simple and inexpensive method for obtaining such discovery.

Contempt (Civil)
Such a motion must of course be on notice. An order to show cause must contain the statutory warnings that the purpose of the hearing is to punish for contempt, punishment may include imprisonment, and failure to appear may result in arrest and imprisonment. Judiciary Law § 756. The moving papers must be served on the accused not less than 10 and no more than 30 days prior to the time set for the hearing. The application must comply with CPLR 2217(b) regarding prior, similar applications and state that the contemnor has impeded, impaired, prejudiced and defeated the rights of the applicant. In matrimonial cases, if the application is made with respect to an enforcement procedure under DRL § 245, there must also be a statement that payment cannot be enforced by sequestration (DRL § 243) or the giving of security, by enforcement of a judgment (DRL § 244), or by an income execution or income deduction order for support enforcement. CPLR §§ 5241 and 5242.

If a person is held in civil contempt after motion, a long form contempt order normally must be drafted and settled (this because of the need for important standardized language in such orders). The original order of contempt should contain certain provisions, such as language reciting that the rights of the applicant were impeded, impaired, prejudiced or defeated by the action of the contemnor. Additional provisions are required in matrimonial orders of contempt. It is recommended that Justices direct settlement of long form orders of contempt in the appropriate back offices (Motion Support and Commercial Division Support) rather than in the Part or in Chambers. The contempt order usually provides that if the contemnor fails to purge the contempt within a fixed period of time, the applicant may submit ex parte an order of commitment for the signature of the Justice, that is, an order directing the Sheriff to arrest the contemnor and bring him or her before the assigned Justice or an Ex Parte Justice. Given the seriousness of the order of commitment, it is suggested that Chambers have it, too, reviewed by the Ex Parte Office or Commercial Division Support Office. If the person appears and is held in contempt after a hearing, the contemnor may be committed without further process. Judiciary Law § 772. If the term of imprisonment is for an indeterminate period, the proceedings must be reviewed every 90 days before the court that imposed the imprisonment, unless the contemnor was discharged by law. Judiciary Law § 774(2).

When the ex parte order of commitment is reviewed by the staff of the Ex Parte Office or Commercial Division Support Office, the staff will requisition and review the file, focusing upon whether the contempt order was properly served and whether sufficient time was allowed the contemnor to purge the contempt. In general, it needs to be clear that a certified copy of the order of contempt was served personally upon the contemnor, that ten days were afforded the contemnor to pay a fine and appear for an EBT or take such other action to purge the contempt as the order may have required, etc.

Default and Inquest
Upon the default of a defendant, the plaintiff may seek a default money judgment or an inquest ex parte under some circumstances. The plaintiff may apply directly to the County Clerk for judgment if the sum is certain or can by calculation be made certain (CPLR § 3215(a)). The default must be taken within one year or the court, absent good cause, shall instead dismiss the complaint. CPLR § 3215 (c). The defendant who appeared in the case is entitled to notice, or, if more than one year has elapsed since the default, even if defendant has not appeared unless the court orders otherwise. The court may dispense with notice when a defendant who has appeared has failed to proceed to trial of an action called for trial. CPLR § 3215(g)(1). Where an application must be made to the court, a defendant who has failed to appear may serve a written demand for, and is then entitled to, notice of any reference or assessment by a jury. CPLR § 3215(g)(2). Additional notice is required when the default judgment based on nonappearance is sought against (i) a natural person in an action based on nonpayment of a contractual obligation, or (ii) a domestic or foreign corporation served pursuant to BCL § 306(b). CPLR § 3215(g)(3) and (4).

The moving papers must contain a copy of the summons with notice or summons and complaint with Clerk's filing stamp; a factual affidavit by the client supporting the claim or a complaint verified by the client; a detailed affidavit or affirmation as to the default and the amount due; proof of service with Clerk's stamp; and a statement in compliance with Section 2217(b) regarding prior, similar applications. CPLR 3215 (f).

If there are multiple defendants, the moving papers must account for all of them. If any has not been summoned, the plaintiff must provide for a severance and disposition with respect to that party (dismissal or discontinuance).

If a motion on notice for a default is granted, the order should provide, where possible, that the Clerk shall enter judgment in favor of plaintiff in the sum of $ X, plus interest [where applicable] from Y date at the proper rate, together with costs and disbursements. If an inquest is required, the order should provide for severance or discontinuance of other parties and direct the Clerk of the Trial Support Office to assign the action for an inquest and assessment of damages. This directive should require that plaintiff serve a copy of the order on the Motion Support Office (which will forward it to Trial Support) and file a Request for Judicial Intervention (if no Justice has been assigned previously) with a note of issue and pay the proper fees. The statement of readiness is waived.

In a foreclosure matter, the order should provide, in addition to the foregoing, for deleting John Doe defendants and amending the caption and should direct an inquest or appoint a referee to compute the amounts due plaintiff on its note and mortgage. It should direct the judicial officer or referee on inquest to report whether the mortgaged premises can be sold in one parcel. The order should determine counsel fees due plaintiff pursuant to the mortgage and provide for the entry of a judgment of foreclosure and sale.

Discharge of Ancient Mortgage
In the case of a mortgage over 20 years old, an application may be made for a discharge pursuant to RPAPL § 1931. Any such application must be brought by order to show cause. RPAPL § 1931(4). A verified petition shall set out the petitioner’s name, address and nature of petitioner's interest, a description of the mortgage, and an explanation as to why the mortgage should be discharged. An official search by the Register of the City of New York, an attorney admitted to practice, or a title company incorporated and authorized to transact business in New York must be presented showing the last record holder of the mortgage. The papers must also comply with CPLR 2217(b) regarding prior, similar applications. The order to show cause shall be published in such newspaper(s) and for such time as the court shall direct. RPAPL § 1931(4).

Discharge of Mechanic's Lien Upon Posting an Undertaking
A mechanic’s lien may be discharged upon posting of an adequate undertaking. Lien Law §§ 19(4) and 21(5).

1) Lien on Private Property
Generally, fixing the amount of the undertaking is no longer required.
A lien for labor performed or materials furnished for a private improvement may be discharged by the owner or contractor executing a bond or undertaking by any fidelity or surety company authorized to transact business in New York in an amount equal to 110% of the lien. Lien Law § 19(4). The bond or undertaking is to be filed with the County Clerk and a copy served on the adverse party. The undertaking is effective when served and filed. Lien Law § 19(4)(a).

For bonds or undertakings not executed as set forth above, the owner or contractor must execute an undertaking with two or more sufficient sureties, who must be freeholders, to the County Clerk. Lien Law § 19(4)(b). The sureties must together justify in at least double the sum named in the undertaking. Lien Law § 19(4)(b). An application must then be made to the court to approve the undertaking. Notice of an application to approve an undertaking must be given to the lienor along with a full set of papers. See Lien Law § 19 (4). Service shall be made at least five business days prior to the return date or ten days if service is by mail. Proof of service shall accompany the application.

2) Lien on Public Improvement
Procedures similar, but not identical, to those outlined above shall be followed with respect to liens on public improvements. Lien Law § 21 (5).

Where a contractor has a credit with the state or a public corporation for a sum by reason of an estimate due and payable, and where payment thereof is withheld because a notice of lien has been filed against the contractor’s interest in that money, if the money is greater than the sum claimed in the notice, the contractor may apply without notice to the Supreme Court for an order discharging the lien and directing retention of a sum not less than the amount claimed by the lienor, with interest and such additional amount as the Justice deems sufficient, and payment of the balance immediately to the contractor. Lien Law § 21 (6). See also Lien Law § 21(6-a).

Examination Inside New York -- Foreign Action
CPLR 3102 (e) governs the procedure for obtaining a deposition of a witness located in New York for use in an action pending in another jurisdiction. Chapter 29 of the Laws of 2010, effective on January 1, 2011, introduced CPLR 3119 which provides a simple mechanism by which a party to an action pending in another state of the United States, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, or U.S. territory or insular possession may obtain a deposition of a New York witness. CPLR 3102 (e) applies to depositions to be used in actions pending in other states and in foreign countries.

1) CPLR 3119

CPLR 3119 allows a party to an out-of-state action to obtain a deposition of a New York witness, the production, inspection and copying of designated records, or inspection of premises by submitting an out-of-state subpoena to the County Clerk of the county in which discovery is sought to be conducted. The Clerk will issue a New York subpoena for service on the witness.

If a party to the out-of-state action retains a New York attorney and that attorney receives the original or a true copy of an out-of-state subpoena, the attorney may issue a subpoena under this section.

Any questions or objections regarding a subpoena issued under CPLR 3119 may be raised by motion for a protective order or to quash, enforce, or modify.

2. CPLR 3102 (e)

In response to a commission, letters rogatory or order from another state, a deposition may be taken of a witness in New York, or documents produced from such a witness, and an order of this court may be obtained to ensure this result. CPLR § 3102(e). The order may be sought by ex parte application, requiring the purchase of an index number and the filing of a no-fee RJI (the application will not be assigned to an IAS Justice). However, scholars state that there appears to be a conflict as to whether the application has to be on notice (David D. Siegel, supra, § 352, at 574), and that, though an ex parte application is authorized, the court may, and normally should, require notice to the witness and all parties to the case (6 Jack B. Weinstein, Harold Korn & Arthur Miller, New York Civil Practice 3102.24, at 31-222 (2d ed. 2009)). The application must be made by an attorney admitted to practice in New York who has a New York address. The petition for this relief should not use the caption from the underlying case, but rather a caption in the form used in a special proceeding (e.g., "In the Matter of the Application of Washington, Jefferson & Lincoln, P.C., Attorneys at Law, Petitioners, to Take the Deposition on Oral Questions of John Smith, Respondent"). If the application is made on notice, it should take the form of a special proceeding. The petition should be supported by an affidavit of New York counsel, a copy of the foreign commission or other process, a proposed order, and a New York subpoena to be served with a copy of the signed order. If a notice of deposition was previously served, a copy should be included. The signing requirement of Section 130-1.1-a of Part 130 must be satisfied. The attorney’s affidavit must state that it is by a New York attorney with a New York address; set forth a basis for the application, including the nature of the action, the name and home or business address of the witness, the nature of the testimony sought and its materiality and necessity; address CPLR 2217(b); and set forth any other information required by any special circumstances. Video taping is allowed only if the commission specifically provides for it. See Trial Court Rule § 202.15. The order should provide for a place, date and time for the examination or for the production of documents and authorize a subpoena or subpoena duces tecum to be served on the witness. The subpoena must be served together with a copy of the order at least 20 days prior to the examination unless the court orders otherwise. CPLR 3106(b). If medical records are sought from a medical provider, the movant must comply with CPLR 3122(a).

Examination Outside the State -- New York Action
See Commission; Letters Rogatory

Extension of Time
Pursuant to CPLR § 2004, the court may extend time periods (not statutory periods of limitation). If the time has not yet expired, the motion may be made ex parte. If the time has expired, the motion should be made on notice, and interim relief may be requested. The court has the power to extend the deadline for effecting service of process. CPLR § 306-b.

The moving papers should include a copy of the summons and complaint and an affirmation/affidavit explaining that the case is not one pursuant to CPLR § 3213 and setting forth the pertinent facts about the deadline in question. The papers should make clear whether any previous extensions were granted by stipulation or order and whether any effort was made to obtain an extension on consent. CPLR 2217(b) must be complied with as to prior, similar applications.

Foreclosure
During the summer of 2008, the Legislature responded to the subprime mortgage crisis by enacting, inter alia, RPAPL § 1304 and CPLR 3408. As originally enacted, RPAPL § 1304 required mortgage loan servicers to send homeowners with “subprime,” “non-traditional,” or “high-cost” home loans (as defined by statute) a notice at least 90 days prior to the commencement of a foreclosure action. A 2009 amendment to this statute requires the notice to be sent prior to the commencement of a foreclosure action involving any home loan as defined in RPAPL § 1304(5). The language of the notice is set forth in the statute. The notices must be sent to the last known address of the borrower by registered or certified mail, in addition to first-class mail. Since RPAPL § 1304 is titled “Required prior notices” as opposed to “Required notices” of RPAPL § 1303 (see below), the borrower is clearly entitled to raise the failure to serve the notice as a defense to the foreclosure action.

CPLR 3408 originally provided for mandatory settlement conferences in residential foreclosure cases commenced after September 1, 2008, and involving subprime, high-cost, or non-traditional loans taken out between January 1, 2003 and September 1, 2008 on property in which defendant is a resident. The rule also allowed homeowners in pre-September 1, 2008 foreclosure actions involving these types of loans to request settlement conferences prior to the issuance of a judgment of foreclosure. The 2009 amendments have expanded the types of cases that qualify for both the mandatory and the voluntary settlement conferences.

In addition to the foregoing, settlement conferences are now mandatory in any residential foreclosure action filed after February 16, 2010, and involving a home loan as defined in RPAPL § 1304. Settlement conferences may also be requested by homeowners in any pre-February 16, 2010 action to foreclose on a home loan on property in which defendant is a resident and in which no judgment has been issued.

A mandatory conference must be held within sixty days after proof of service is filed with the County Clerk, or on such adjourned date as has been agreed to by the parties. A voluntary conference is to be held as soon as practicable. The settlement discussions are to pertain to the relative rights and obligations of the parties under the mortgage loan documents, including, but not limited to, determining whether the parties can reach a mutually agreeable resolution to help the defendant avoid losing his or her home, and evaluating the potential for a resolution in which payment schedules or amounts may be modified or other workout options may be agreed to, and for whatever other purposes the court deems appropriate. CPLR 3408 (a).

If the settlement conference process ends without a resolution, the foreclosure action continues. Applications in foreclosure actions may be made ex parte when all defendants have either defaulted or filed notices of appearance and waivers of service of further papers. In other instances, applications must be on notice.

Where a lender is making its first application to the court in any residential foreclosure action commenced prior to September 1, 2008, the lender should identify in its supporting papers whether the loan is sub-prime or high-cost (see Laws 2009, Ch. 507, § 10). The purpose of this identification is to allow the court to notify the homeowner that he or she may request a settlement conference.

All applications should recite whether there has been a settlement conference and, if not, state why the loan is exempt from the conference process.

1) Application to Appoint Referee
The process begins with an application to appoint a referee to compute the sum due the plaintiff. The applicant must submit an affirmation/affidavit that recites that a notice of pendency was filed and when that was done; that the required prior notice complying with the language set forth in RPAPL § 1304 was properly served on the borrower(s); that the time for the defendants to appear, answer or move has expired and that no defendant has appeared or answered (except for those who have made limited appearances); and, if that is the case, that the defendants or some of them have admitted the plaintiff's right to foreclose. The RPAPL was amended, effective February 1, 2007, to require that a form notice titled “Help for Homeowners in Foreclosure” be delivered with the summons and complaint commencing any foreclosure action for owner-occupied one-to-four-family dwellings. RPAPL § 1303. There is authority, though not on the Appellate Division level, holding that the failure to serve the notice with the summons and complaint is ground for denying an application for the appointment of a referee to compute [Countrywide Home Loans, Inc. v Taylor, 17 Misc. 3d 595 (Sup. Ct. Suffolk Co. 2007)].

The moving papers should include a proposed order of reference. The designated referee must be an appointee whose name is taken from the approved fiduciary list or who has superior qualifications (see Section 36.1 (a) of Part 36 of the Rules of the Chief Judge). (The procedures set forth in Section 36.4 do not apply to a referee or a referee to sell whose compensation is anticipated to be $ 750 or less.) The order should direct the referee to compute the amount due and determine whether the premises can be sold in a single parcel. RPAPL § 1321. An ex parte application of this sort must be accompanied by the filing of an RJI (unless for some reason the matter had already been assigned, e.g., on a motion for the appointment of a receiver).

2) Motion to Confirm
The report of the referee is normally prepared by the plaintiff's counsel. It must recite the work of the referee (usually including a schedule of the documents examined and relied upon by the referee) and set forth findings of fact and conclusions of law regarding the issues referred, chiefly, the amounts of principal and interest and sums otherwise due. If testimony was taken, the transcript must be annexed to the report unless the parties stipulate to dispense with it. If the referee was appointed by ex parte order in a default situation as explained above, the application to confirm may proceed ex parte as well. In such an instance, the application will include a request for the entry of a judgment of foreclosure and sale, as explained in Item 5 below.

3) Motion to Appoint Receiver
A receiver may be appointed without notice if the mortgage contains a receivership clause. RPL § 254. The plaintiff need not show that the property is inadequate security if the mortgage contains such a clause. Such a showing is dispensed with where the mortgage authorizes the appointment of a receiver of the rents and profits and provides that, upon default, rents and profits are assigned or pledged as added security.

The papers in support of the application must state the amount of the monthly rent roll and include a copy of the summons and complaint, the mortgage, note or lien and tax certificate, proof of service, a proposed order for appointment of a receiver, and a Request for Judicial Intervention (if there has not been one already). The court will appoint the receiver, who must be a person on the official fiduciary list or one with better qualifications, and there must be compliance with Parts 26 and 36 of the Rules of the Chief Judge. A bank must be designated by the court to serve as depository for the receiver's accounts.

A receiver must qualify before exercising power. This requires filing an oath and posting an undertaking. CPLR §§ 6402-03. The court order shall specify the amount of the undertaking. As to powers, duties, and responsibilities, see CPLR § 5228, RPAPL § 1325 and GOL § 9-101.

The receiver is entitled to a commission as fixed by the court in an amount not exceeding 5 % of amounts received and disbursed. CPLR § 8004(a).

4) Termination of Receivership
The plaintiff may apply ex parte to terminate a receivership. The application must be supported by an affidavit/affirmation justifying the request, the consent of the receiver, and a proposed order, together with compliance with CPLR 2217(b) regarding prior, similar applications. The proposed order should provide that the receivership be terminated, contain a direction that the receiver surrender the premises to the owner, and direct the receiver to settle an account with all appropriate speed or within a fixed deadline.

5) Judgment of Foreclosure
The order and judgment of foreclosure usually is submitted with the ex parte application to confirm the report of the referee to compute. The papers must establish default or consent to the foreclosure. See Default and Inquest above for papers required on a motion for a default judgment.

The proposed order and judgment should be submitted with the papers. It should contain a direction that the premises be sold in the manner set forth in the referee's report and should specify clearly the amount of the plaintiff's lien with interest, costs and extra allowances (CPLR Art. 83). A blank line for costs and disbursements may be left for completion by the Clerk. The order and judgment should clearly identify the mortgagor's interest that is to be sold (fee, etc.) and any superior interests that limit the estate being sold.

The order and judgment appoints a referee to sell, who usually is the referee to compute. If a new person is appointed, there must be compliance with CPLR 4312 and Parts 26 and 36 of the Rules of the Chief Judge. The order and judgment will specify the referee's fee, the place and time of the sale, and where notice will be published. See CPLR § 8003(b).

If an answer was served, the plaintiff will have to proceed by motion on notice for summary judgment and the appointment of a referee to compute. This motion is processed through the Motion Support Office (Room 119).

Letter Rogatory: See Commission; Letters Rogatory.

Mechanic's Lien, Discharge of: See Discharge of Mechanic's Lien.

Pro Hac Vice Applications
May be made to the IAS Justice on notice or ex parte. See Section 520.11 of the Rules of the Court of Appeals and Section 602.2(a) of the Rules of the Appellate Division, First Department. The applicant must submit an affirmation describing admission to the bar of some state, the length of time in practice, the location and nature of the practice and stating that the applicant has not been disciplined in another jurisdiction. The applicant must indicate who from the New York bar will be associated in the prosecution or defense of the matter in question. An affirmation of New York counsel must be submitted stating the purpose of the admission and compliance with CPLR 2217(b) regarding prior, similar applications. A proposed order must be submitted that sets forth the purpose of the admission. The application must include a stipulation or consent, or be made on notice.

Sealing of File at Commencement
A plaintiff may wish to seal a file upon commencement, sometimes under an anonymous caption but at other times not. As to the former, see Anonymous Caption Order and Sealing of File. As to the latter, complaints and other commencement documents are made available to the press on the day of filing. To avoid such public access, plaintiff’s counsel should, before filing, contact the Chief Deputy County Clerk or the Clerk-in-Charge of Law and Equity in the County Clerk’s Office (Room 141B). The one or the other will retain the complaint for a period sufficient to allow counsel to present an order to show cause seeking a sealing order pursuant to Part 216 of the Uniform Rules and a TRO ordering sealing pending the return date. The County Clerk will await the outcome before making the pleading publicly available. Counsel should immediately inform the County Clerk of the outcome of the application for a TRO.

Security for Costs
May be made ex parte. CPLR § 8501 (a). The affirmation/affidavit in support must state that the plaintiff has not been granted permission to proceed as a poor person and is not a petitioner in a habeas corpus proceeding; that the plaintiff is not a domestic or foreign corporation authorized in this state; that plaintiff is not a resident of this state; and that CPLR § 8501(b) does not apply (a fiduciary is not in place). The papers must include proof of the plaintiff's non-residency, which may consist of a copy of the summons, proof from the Secretary of State where a corporation is involved, and the like.

The defendant should move on notice to the plaintiff if the amount of security requested is in excess of $ 500 or if the case is listed in CPLR § 8501(b). The papers should include a Request for Judicial Intervention if the case has not previously been assigned and a proposed order which should fix the amount of an undertaking, provide a deadline (30 days) for its posting, stay the proceeding as set forth in CPLR § 8502, and provide for service on plaintiff within 10 days.

Seizure, Order of
An order to seize a chattel (replevy) may not be made ex parte except where, in addition to the basic prerequisites for such an order, the court finds that, unless such an order is granted without notice, it is probable that the chattel will be transferred, concealed, disposed of, or removed from the state, or will become substantially impaired in value. CPLR § 7102(d)(3). A detailed affidavit of facts justifying the extraordinary ex parte nature of the relief sought is required (CPLR § 7102 (c)), as is, of course, a statement satisfying CPLR 2217(b) regarding prior, similar applications. An order granted ex parte must provide that the plaintiff will move to confirm the seizure on such notice as the court shall direct within no more than five days after seizure. CPLR § 7102(d)(4).

An application for an order of seizure must be supported by an affidavit and an undertaking by which the surety shall be bound in a specified amount that shall be not less than twice the value of the chattel. See CPLR § 7102(c),(d),(e).

A TRO may be obtained on a motion brought on by OSC preventing the chattel from being removed, sold, assigned, or otherwise encumbered or disposed of. CPLR § 7102(d)(2).

Substituted Service (CPLR § 308(5))
A plaintiff may move ex parte for leave to serve a defendant in such manner as the court directs. This relief may be obtained only if service under subdivisions 1, 2 and 4 of CPLR § 308 is impracticable. Courts have broad discretion in ordering methods of service under CPLR § 308 (5) provided that they are reasonably calculated to provide notice.

The method of service proposed by the plaintiff need not be adopted and should not be if it is not reasonably calculated to provide notice. The affidavit in support must show that there is a reasonable chance that the defendant will receive notice of the action. Otherwise, service by publication may be necessary.

The papers required on an application of this sort consist of a copy of the summons with notice or summons and complaint, an affidavit/affirmation of past efforts to serve and why alternative service is required, proof of the last known address of the defendant, a proposed order, and compliance with CPLR 2217 (b) regarding prior, similar applications.

Substituted Service -- By Publication
A plaintiff may obtain an order ex parte for publication under certain circumstances. CPLR 316. The plaintiff must submit an affirmation/affidavit in support, an affidavit of due diligence by a process server, exhibits demonstrating the results of a search for defendant (Post Office, Surrogate's Court, Board of Elections, Department of Motor Vehicles, military (in the five branches)), notice of publication (see Rule 316 (a)), a summons and complaint or summons with notice, a proposed order in compliance with Rule 316, and a Request for Judicial Intervention.

Withdrawal of Funds -- Commissioner of Finance
In connection with certain proceedings in this court, funds are sometimes deposited with the Commissioner of Finance pursuant to court order. Funds deposited with the County Clerk are promptly transferred to the Commissioner of Finance. An application for release of these funds can be made ex parte if the consent of all persons who have appeared in the action is submitted as part of the application. Otherwise, the applicant should move on notice to all parties.

The applicant should obtain from the Commissioner of Finance proof of the deposit, which is called a Certificate of Deposit. In a pending action an application can be submitted or else the claimant must execute and present a verified, duly acknowledged petition setting forth the facts that substantiate the claim to the funds in question. The petition must be sworn to before a notary public and a copy of the Certificate of Deposit, the application therefor, and the receipt issued by the County Clerk when the funds were originally deposited must be submitted. The claimant must present a proposed order reciting the material submitted and containing a directive to the Commissioner of Finance of the City of New York to pay the claimant, upon service of a certified copy of the order, the sum shown on the Certificate of Deposit, plus accrued interest, less lawful fees. A certified copy of the order may be obtained after filing in the Office of the County Clerk (cost $ 8.00, payable by check to the County Clerk). This copy should be served on the Commissioner of Finance.

April 2012

 

 

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