Wednesday, August 28, 2013

Emergency Applications & Notice Requirements

As I'm doing more set up work on my soon to open office in New Jersey, I get a call from a New York court that a pro se litigant on one of my cases is at the court filing an emergency application, which I supposedly received notice of on Saturday. Being a bit concerned, and pointing out to the clerk that my office was not open on Saturday and that I did not have notice of the application, I decided to open up the file and see what is going on in the case.

The clerk and I had a lengthy discussion about the history of the particular case and it became clear that I was now arguing an ex parte application that I had no knowledge of or chance to review prior to the telephone call. This also brought me back to the Appellate Division's own rules for applications, specifically § 670.5 (e):
(e) Except as hereinafter provided, when an order to show cause presented for signature makes provision for a temporary stay or other interim relief pending determination of the motion, or when an application is presented pursuant to CPLR 5704, the party seeking such relief must give reasonable notice to his or her adversary of the day and time when, and the location where, the order to show cause or CPLR 5704 application will be presented and the relief being requested. If notice has been given, the order to show cause or the application pursuant to CPLR 5704 must be accompanied by an affidavit or affirmation stating the time, place, by whom given, the manner of such notification, and to the extent known, the position taken by the opposing party. If notice has not been given, the affidavit or affirmation shall state whether the applicant has made an attempt to give notice and the reasons for the lack of success. If the applicant is unwilling to give notice, the affidavit or affirmation shall state the reasons for such unwillingness. An order to show cause providing for a temporary stay or other interim relief or an application pursuant to CPLR 5704 must be personally presented for signature by the party's attorney or by the party if such party is proceeding pro se.

Despite the Appellate Division's clear rules, the other party refused to comply with the provisions and now I am awaiting a call back to see if the Court even entertained the application. It is unfortunately the nature of the beast when dealing with a pro se litigant that they inevitably ignore the rules, whether maliciously or inadvertently, and cause me quite a headache.

For more information on emergency applications or to schedule a consultation, please call me at 718.568.0221 or 908.698.0417, or contact me through my website (AndrewMAyers.com).

1 comment:

  1. Not all pro ses.
    And in all fairness, pro sese do not even get a chance to get a TRO compared with what attorneys get away with

    ReplyDelete