Legal Question in Civil Litigation in New York
filing papers in court
will the court hear a cross-motion if the papers were not filed in advance? I am a plaintiff pro se, and was served, via regular mail, with a notice of motion to dismiss by an out-of-town defendant. I countered with a motion for summary judgment which I served via certified mail, return receipt received. The court clerk, however, will not allow the papers to be filed since I don't have an affidavit of personal service. Do I now have to send somone out there, or will the Court here it anyhow? Thanks for your help!
2 Answers from Attorneys
Re: filing papers in court
Your question does not make sense in all aspects:
why does the clerk want personal service? It is not required. The only requirement is that the cross motion be served timely, at least 8 days plus 5 for service by mail, prior to the return date.
In practice the court may well accept the papers from you on the calendar call, but if you are traveling here, I suggest you work out a stipulation with the other side to adjourn everything so themotion is timely.
Re: filing papers in court
The court probably will not hear your motion until your papers are properly filed and served. However, if you go to court on the motion return date and explain that you made a good-faith effort to serve your papers, the court will most likely allow you an adjournment (postponement)
Hope this is helpful.
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