Now, we need to figure out whether we are looking at a decision or order; was the motion litigated or a result of default; was it ex parte or sua sponte; and what we can do about it.
With this knowledge, we can decide whether to make a Motion to Renew, Reargue, to Vacate; or consider an Appeal.
When you are facing a loss on a fully litigated motion and its something you just can't leave alone, we can help you determine whether Reargument, Renewal, Resettlement, or Appeal is your best choice moving forward.
CPLR Section 2221 is the statute in New York that governs Motions affecting prior Motions. This is the statute under which Motions to Renew, Reargue, Ressettle, etc. are made and a careful reading is necessary.
A Motion to Reargue is based on matters of fact or law allegedly overlooked or misapprehended by the court in determining the motion, excluding facts not offered in the original motion. A motion for leave to reargue is not meant to provide a losing party with another bite at the apple or to present arguments different than those already presented.
A Motion to Renew is based upon a change in the law or entirely new facts not offerred in the original motion that can serve as a basis to change the prior determination. You will need a reasonable excuse for omiting new facts, as the courts may reject a motion to renew with no justification.
A Combined Motion to Renew and Reargue is also a possibility and it allows you to do both and le the court decide each part of the motion as if it were separately made. You cannot appeal Motions to Renew or Reargue when the court denies leave, but you may appeal should the court grant leave but did not sufficiently change its determination.
A Motion for Resettlement is a procedure designed solely to correct errors or omissions as to form, or for clarification, and may not be used to effect a substantive change in or to amplify the decision of the court. This is a remedy for when a party alleges that an order or judgment does not accurately incorporate the terms of a settlement.
An Appeal is also an option for most fully litigated motions that result in an order.
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SO BE PROACTIVE AND CALL US AS SOON AS
YOU GET THE ADVERSE DETERMINATION
Orders and Judgments entered on Default are not appealable. If you wish to overturn a determination made on default, you must move the court to vacate the default and then, if that relief is denied, we can appeal from the order denying relief.
Ex parte and Sua Sponte Orders are not appealable. However, the Appellate Division may be able to review an ex parte order through CPLR 5704 applications and there exists a somewhat arduous process to get appellate review of a sua sponte order.
Orders Entered on Consent are not appealable. Should you ever consent to an order, make sure to reserve the right to move to vacate that order.
New York Statutes
Civil Practice Law and Rules
Article 22. STAY, MOTIONS, ORDERS AND MANDATES
§ R2221. Motion affecting prior order
|(a)||A motion for leave to renew or to reargue a prior motion, for leave to appeal from, or to stay, vacate or modify, an order shall be made, on
notice, to the judge who signed the order, unless he or she is for any reason unable to hear it, except that:
|(b)||Rules of the chief administrator of the courts. The chief administrator may by rule exclude motions within a department, district or county from the operation of subdivision (a) of this rule.|
|(c)||A motion made to other than a proper judge under this rule shall be transferred to the proper judge.|
|(d)||A motion for leave to reargue:
|(e)||A motion for leave to renew:
|(f)||A combined motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought. The court, in determining a combined motion for leave to reargue and leave to renew, shall decide each part of the motion as if it were separately made. If a motion for leave to reargue or leave to renew is granted, the court may adhere to the determination on the original motion or may alter that determination.|
Cite as N.Y. C.P.L.R. Law § R2221
New York Statutes
Civil Practice Law and Rules
Article 57. APPEALS TO THE APPELLATE DIVISION
§ 5704. Review of ex parte orders
|(a)||By appellate division. The appellate division or a justice thereof may vacate or modify any order granted without notice to the adverse party by any court or a judge thereof from which an appeal would lie to such appellate division; and the appellate division may grant any order or provisional remedy applied for without notice to the adverse party and refused by any court or a judge thereof from which an appeal would lie to such appellate division.|
|(b)||By appellate term. The appellate term in the first or second judicial department or a justice thereof may vacate or modify any order granted without notice to the adverse party by any court or a judge thereof from which an appeal would lie to such appellate term; and such appellate term may grant any order or provisional remedy applied for without notice to the adverse party and refused by any court or a judge thereof from which an appeal would lie to such appellate term.|
Cite as N.Y. C.P.L.R. Law § 5704
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