Below are some thoughts on New York motion practice.
A motion is made whenever you want to request that the Court issue an order. Written motions can be made through either a Notice of Motion or Order to Show Cause.
A motion on notice is the "standard" form for a motion. The party making the motion chooses a return date and serves their adversary with notice that they will be making a motion on a particular date, in a particular courtroom, as well as any papers will be submited in support of the motion. At a minimum, you need to serve your papers eight days in advance of the return date, bearing in mind that service by regular mail is not "compete" until five days after mailing. (CPLR 2214-2215). Personally, I try to use methods of service that are completed immediately (e-mail or fax) whenever possible.
The second method for making a motion, an Order to Show Cause, involves immediate Court intervention. The moving party goes to the court with their motion papers (usually at the court's "ex-parte" part), and obtains an Order requiring the opposing party to appear on a certain date and time before a judge to oppose the motion. Orders to Show Cause are more burdensome for the judges involved, and so should not be used unless there is good reason.
There are two main reasons you would want to proceed by Order to Show Cause rather than Notice of Motion. First, the Court sets the timeframe for the motion to be heard, so a short and specific schedule can be ordered and adjournments are more difficult to obtain. Second, (provided the other party was provided with at least some notice, such as a phone call the day before, less such notice would be impractical), a judge can order immediate relief, such as a restraining order, injunction, or similar relief.
The Notice of Motion or Proposed Order to Show cause acts as a cover page to the main motion papers.
The affirmation/affidavit is the main document in your motion papers. It is the document to which you annex your exhibits and in which you make your written argument.
Like every formal document submitted to a court, the affirmation begins with a caption, which should be clean and neat. The rules are set forth in C.P.L.R. 2101, which says, essentially, each document should begin with a caption listing the name of the Court, the parties (all parties should be listed in summonses, complaints, and judgments; in other papers you only need the first-named parties and a notation such as "et al."), the index number, and a title identifying the nature of the document.
New York State courts do not require memoranda of law. Instead, they use what is called a "speaking affirmation." Attorneys are permitted to submit both their legal and factual arguments in an affirmation. An attorney's affirmation is not evidence, and factual statments must be supported by exhibits attached to the motion papers.
Pro-se litigant (even if they are also attorneys), must use an affidavit instead of an affirmation. An affidavit must be notarized, but the factual statements contained in an affidavit are considered evidence (provided the party making the affidavit has direct knowledge). Supporting exhibits, of course, still help.
In the Supreme Court, filing a motion costs $45; there is no fee in the NYC Civil Court or local District Courts. There is no fee for responding to a motion. You can find a form motion (formatted for NYC Civil Court), as well as other helpful forms, here.
Below the caption, the party making the affirmation or affidavit identifies themselves. An old rule of practice is that the writer's name is listed in all caps. As an attorney, I would write "SCOTT J. KREPPEIN, an attorney duly admitted to practice before this Court, affirms the following under penalty of perjury." If I were a pro-se litigant, the affidavit would begin "SCOTT J. KREPPEIN, being duly sworn, deposes and states."
After this first identification, every paragraph should be numbered. In the first or first few numbered paragraphs, the writer informs the court of their relationship to the litigation, what the submission is for, and what the papers will argue. For example, a pro se litigant submitting an affidavit in support of a motion would write: I am the plaintiff in the above action, and make this affidavit based upon my own knowledge. This affidavit is respectfully submitted in support of my motion for ABC, which should be granted because of X, Y and Z.
These first paragraphs should provide a readable roadmap for your submission. If you have four points, tell the court that you have four arguments and list them. You can use bullets and sub-paragraphs if necessary. If you haven't convinced the judge that you should win by the second page of your submission, then you haven't done your job right.
The fact section should include four things: facts essential to your legal points; facts your adversary will undoubtedly rely on; enough procedural history and background to provide context; and a sparing dose of humanization. Organization is key, and your facts need not be in chronological order. You need to decide how to best present your case, and each case is different. Whatever you do, you should get to the point early. It is often good practice to start off with the pivotal event (the injury, the manner in which the contract was breached, etc.).
You should have topic sentences. Dates and witness names are not topics. If you reference a date, it should only be because it is an important fact. If you are referencing dates because of the time span between them, state the timespan, not just the date. Don't make the court do math, they don't like that.
Your statement of facts should be crafted as a coherent narrative. Tell your story. You do not want a balanced presentation: you want a coherant narrative that supports your side. The narrative must be truthful, but don't make your adversaries' arguments for them.
That said, there are two reasons to include adverse facts: either you want to prevent the shock of having not disclosed them, or you want to pre-emptively deflate your opponent's argument. Dealing with a fact that hurts you is always a judgment call.
Sympathetic but irrelevant facts should be used sparingly, and with decorum and respect for the judge's intelligent. A brief statement of a plaintiff's injuries is appropriate, such as "P fell and suffered a broken arm." A long, drawn out plea for sympathy is not.
The discussion is your legal argument. In law school, they teach you to make your arguments in four steps: identify the issue (and how it should be resolved), identify the applicable legal rule, apply the legal rule, and restate your conclusion. My prior "resources" post provides links to a free case law research database, important statutes, and several other useful links.
Motion papers conclude with a request for relief, which generally begins with something to the effect of "Wherefore, it is respectfully requested that an Order be issued...." and ends with "together with such other and further relief as is deemed just and proper." In this paragraph, you should tell the Court exactly what you want it to order.
DECISIONS AND ORDERS
In some courts, you are expected to appear on the return date prepared to argue; in others, all motions are done on submission. If you are not sure about the procedures in the venue where your motion will be filed, you should check with that court's clerk, motion support office, or pro se office.
Generally, judges are supposed to issue an Order deciding the motion within 60 days of when the motion is fully submitted. (C.P.L.R. 2219). In practice, however, a judge may take longer to issue a decision.
Once an Order is issued, it should be served with notice of entry upon the other party, which starts the clock for when an appeal can be taken (30 days under CPLR 5513), and may have other significance.
* How To Argue An Appeal
* Notice of Entry and Notice of Appeal
* How To Argue An Appeal
* Notice of Entry and Notice of Appeal