Cross-Motions: Being Offensive Can Be Effective

Cross-Motions: Being Offensive Can Be Effective—A Primer on CPLR 2215

By Katryna L. Kristoferson, David Paul Horowitz, Hon. Judge Barbara Jaffe (Ret.) and Brian Graifman | September 25, 2023 at 12:00 PM

For New York state litigators, being served with a motion presents both a challenge and an opportunity. CPLR 2215 permits a non-moving party to move by cross-motion demanding relief against the moving party. Efficiencies abound, including having the initial motion and cross-motion heard (or submitted) on a singular return date.

Cross-Motions Under the CPLR

CPLR 2215 provides:

Relief demanded by other than moving party. At least three days prior to the time at which the motion is noticed to be heard, or seven days prior to such time if demand is properly made pursuant to subdivision (b) of rule 2214, a party may serve upon the moving party a notice of cross-motion demanding relief, with or without supporting papers; provided, however, that:

(a) if such notice and any supporting papers are served by mailing, as provided in paragraph two of subdivision (b) of rule 2103, they shall be served three days earlier than as prescribed in this rule; and

(b) if served by overnight delivery, as provided in paragraph six of subdivision (b) of rule 2103, they shall be served one day earlier than as prescribed in this rule. Relief in the alternative or of several different types may be demanded; relief need not be responsive to that demanded by the moving party.

The ready availability of cross-motions in state practice contrasts with federal practice. While federal district courts in upstate New York allow cross-motions under their local rules, there is no provision for a cross-motion in the federal rules of civil procedure. (SeeNDNY Local R. 7.1(c); WDNY Local R. Civ. P. 7(b)(2(A)).

Relief Against Movant Includes Any Relief

The cross-movant may seek relief via cross-motion only against the moving party: “a party may serve upon the moving party a notice of cross-motion demanding relief . . .” (emphasis added). If relief against one or more non-moving parties is needed, then a stand-alone CPLR 2214 motion is the proper device.

While the target of a cross-motion is limited, the type of relief that may be requested is unlimited. Relief may correspond with that sought in the underlying motion or be unrelated, and relief in the alternative may be demanded (CPLR 2215[b]). Fans of Mad Magazine (read, “boomers”) will remember the Spy-Versus-Spy cartoons, which often had one spy hiding a weapon behind his back while the other spy harbored a bigger one. So too with cross-motions. This “quirk” in the rule may inspire schadenfreude in the cross-movant where the movant’s request for innocuous relief provokes a cross-motion ultimately fatal to the moving party.

A Notice of Cross-Motion Is All That Is Needed

The notice of cross-motion may be “with or without supporting papers” (CPLR 2215), although Katryna and David suggest that identifying the location of record proof sufficient to support the relief requested in the cross-motion is needed, which can be as simple as including a request to “search the record” under summary judgment rules, and thereafter grant relief to another party.

CPLR 2215’s “notice” requirement adds clarity to motion practice, eschewing the practice whereby an opposing party improperly buries a request for affirmative relief in the answering papers without the alert afforded by the notice of cross-motion, although courts have continued to allow this practice (Silvering v. Sunrise Family Med.,161 A.D.3d 1021 (2d Dep’t. 2018) (holding “a party seeking relief in connection with another party’s motion is, as a general rule, required to do so by way of a cross motion,” courts “retain discretion to entertain requests for affirmative relief that do not meet the requirements of CPLR 2215).

No Reply

Cue the Beatles: “No Reply.” One disadvantage of cross-moving is there is generally no right of reply on the cross-motion. See Hodes v. Heathcote Associates, Index No. 606276/96, NYLJ, Apr. 15, 1997, at 26, col. 1 (Sup. Ct. N.Y. Co.) (“a misguided effort to obtain a ‘right of reply’ to the cross motion. CPLR does not provide for a reply on a cross-motion”); Castle House Dev. v. City of New York Police Dep’t, 24 Misc.3d 1222(A), 897 N.Y.S.2d 668 (Table) (Sup. Ct. N.Y. Co. July 10, 2009) (“an arguably improper reply to its cross-motion (permission to submit same had never been sought nor granted)”).

However, courts have countenanced a reply upon consent or where the reply is served with sufficient time to alleviate any prejudice. Katryna and David strongly recommend avoiding making a cross-motion where the record will be enhanced by reply papers; in that case a motion should be made, with a request to the court that the multiple motions be consolidated for disposition.

A Cross-Motion May Be Served In Response to an OSC

There is no prohibition against cross-moving to an order to show cause. A “motion” is an application for an order, when on notice either by notice of motion or an order to show cause (CPLR 2211). As a cross-motion is made to a “motion,” the initiating motion may be a notice of motion or order to show cause. See Matter of Sastow v. Plainview-Old Bethpage Cent. School Dist., 44 A.D.3d 1057, 843 N.Y.S.2d 839, 840 (2d Dep’t 2007) (ordering grant of cross-motion to vacate temporary restraint of order to show cause); Steinman v. Steinman, 80 A.D.2d 892, 893 436 N.Y.S.2d 901, 903 (2d Dep’t 1981) (reversing denial of plaintiff’s cross-motion to dismiss, which responded to defendant’s order to show cause for child custody); City Bank Farmers Trust Co. v. Cohen, 300 N.Y.361, 365-66 (1950) (in declining to rule on non-final certified question, recounting case’s procedural history under Civil Practice Act as including mortgagee-appellant’s cross-motion to mortgagor-appellee’s order to show cause).

Timing the Cross-Motion

While e-filing alleviates most if not all of the timing issues relating to filing and service endemic to the CPLR, some courts lack e-filing, and there the time for interposing the cross-motion depends initially on the (i) language of the originating notice of motion and (ii) the manner of service of the cross-motion and its expected receipt (often requiring a level of CPLR nerdiness).

Under rule 2215, the notice may be served at least three days before the date on which the motion is noticed to be heard, or seven days prior to the noticed date if demand is properly made in the originating notice of motionpursuant to the original motion rule, CPLR 2214(b).

The two rules work in tandem, depending on the language in the original notice of motion: the 8‑2 combo, or the 16‑7‑1 that includes a reply and allows more lead time for any cross-motion (and these times do not include time for mailing). The numbers represent the minimum number of days before the return date for serving (i) the moving papers, (ii) the opposition and, in the long version (iii) the movant’s reply. CPLR 2214(b) reads (with emphasis added):

(b) Time for service of notice and affidavits. A notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard. Answering affidavits shall be served at least two days before such time. Answering affidavits and any notice of cross-motion, with supporting papers, if any, shall be served at least seven days before such time if a notice of motion served at least sixteen days before such time so demands; whereupon any reply or responding affidavits shall be served at least one day before such time.

Occasionally a movant will improperly short-serve, by including the 2214(b) language, demanding responsive papers seven days in advance of the return date, without providing the requisite 16-day advance period.

Query: Would a notice of motion that demands answering papers seven days prior to the return date but which states nothing of a notice of cross-motion release the cross-movant from the earlier advance period for the cross-motion portion? Katryna and David are of the opinion that the rule means what it says, and a moving party that wants to assure receiving a cross motion seven days in advance must demand the required notice.

Where service by mail is required, the cross-movant adds to the time set forth in 2215 one extra day for overnight delivery or three extra days for mail (CPLR 2215(a) & (b), referencing CPLR 2103(b)).

Notwithstanding a cross-movant’s technical violation of these rules, where the responding party has an adequate opportunity to respond without prejudice—and presumably without having rejected the faulty cross-motion under CPLR 2101(f)—a court may consider the faulty cross-motion under the rubric of no harm, no foul. See Keller v. Merchant Capital Portfolios, 103 A.D.3d 532, 532, 962 N.Y.S.2d 48, 50 (1^st Dep’t 2013) (although defendant “did not serve its cross motion to dismiss within time frame provided by CPLR 2215, such failure may be excused where, as here, plaintiffs have not shown prejudice resulting from the delay, and plaintiffs had sufficient opportunity to respond” (case citations omitted)); Daramboukas v. Samlidis, 84 A.D.3d 719, 721-22, 922 N.Y.S.2d 207, 209-10 (2d Dep’t 2011) (court below should have considered cross-motion for summary judgment dismissing the complaint and cross-claims: “Although a cross-motion is an improper vehicle for seeking affirmative relief from a nonmoving party, a technical defect of this nature may be disregarded where, as here, there is no prejudice, and the opposing parties had ample opportunity to be heard on the merits of the relief sought.” (citations omitted)).

One last thing to keep an eye out for, that while some counties group motions under a single motion sequence number (i.e., New York County) others assign the cross-motion a separate motion sequence number (i.e., Nassau County). We note, it is always practical practice to know the practice of the county your in.

Conclusion

This all hopefully prepares the reader, the practical practitioner, for the next crossing of paths with a cross-motion. We are delighted to be joined by fellow practical practice geeks Judge Barbara Jaffe (Ret.) and Brian Graifman, Esq. and hope that this will be the first of many collaborations for this column.

In the meanwhile, keep your eyes peels for that schadenfreude-inspired moment when you can turn the tables on your adversary with a cross-motion.

Please see ALM.com for the full printed article.

Special Thanks to our Guest Contributors:

Judge Barbara Jaffe, retired from the New York State Supreme Court, New York County, is now of counsel at Borah, Goldstein, Altschuler, Nahins & Godiel, where she focuses on commercial cases brought in by the New York State Supreme and federal courts.

Brian Graifman is a partner at the firm and originator of the Arts & Crafts in Litigation CLE and article series.