Burden of Proof: Court Can’t ‘Just Say No’
9.16.2025
Inherent Power of Courts
It is well settled that a court in New York State has the inherent power to control its own calendar. As the Court of Appeals stated in Headley v. Noto,[1] in the context of multiple actions:
“It is well recognized that the power to control its calendar is a vital consideration in the administration of the courts (citation omitted). Indeed, a litigant should be prevented from repeatedly bringing his claim into court, thereby harassing the other parties involved and clogging the court’s calendar.”
A court may permanently enjoin a party and/or counsel from commencing an action based upon the same claims as a prior action where that prior action has been litigated to conclusion:
“In light of the plaintiff’s history of engaging in frequent, protracted, and often frivolous litigation by attempting to relitigate the fraud issues, the Supreme Court properly permanently enjoined the plaintiff, his current and former counsel of record in this action, and their affiliates from instituting any further actions that are related to his amended complaint in any courts of this State against these defendants.”[2]
Citing Braten, a court may enjoin a party from making a motion without prior judicial approval where the party has made multiple frivolous motions in the action:
“Furthermore, given the plaintiff’s history of engaging in frivolous litigation, the Supreme Court properly enjoined him from making any further motions in this action in the absence of prior approval by the court.”[3]
A large, if not the largest, part of any court’s calendar consists of motions. As anyone who has sat through the call of a motion calendar, particularly in a large urban county, knows the number of motions to be heard on a given day can be daunting. As the First Department recognized in Grisi v. Shainswit:
“We are also not unmindful of the crushing volume of motions – including the patently meritless, frivolous and untimely – with which a Justice presiding over a civil part under the individual assignment system is confronted.”[4]
So, given the court’s inherent power and the large volume of motions (some of which will, no doubt, be “patently meritless, frivolous and untimely”), can a court condition the making of a motion upon receipt of prior approval from the court?
‘No!’
So as not to bury the lead, a court may not condition the making of a motion upon obtaining prior approval from the court to make the motion (except in extremely narrow circumstances à la Duffy v. Holt-Harris above). More on that below. But first, there are procedural pre-conditions (some might say hurdles) a court may require before a motion can be made.
‘Before Moving You Must . . . ’
That being said, courts have imposed requirements that must be complied with before a motion can be made, and those requirements sometime blur the line between prior approval and something less onerous.
Courts have devised a number of tools to control the process of addressing and deciding motions. Some of those rules are, no doubt, designed to reduce the number of motions that require an order or decision and order by a court, thereby reducing the burden on the court (an altogether worthy goal given the limited judicial resources available to litigants). For example, requiring a pre-motion conference designed to get the parties to resolve their dispute without the need for the court to rule on the motion, is permitted, and a pre-motion conference is required pursuant to Rule 202.70 Rule 24 “Advance Notice of Motions” in the Commercial Division:
“Rule 24. Advance Notice of Motions. (a) Nothing in this rule shall be construed to prevent or limit counsel from making any motion deemed appropriate to best represent a party’s interests. However, in order to permit the court the opportunity to resolve issues before motion practice ensues, and to control its calendar in the context of the discovery and trial schedule, pre-motion conferences in accordance herewith must be held. The failure of counsel to comply with this rule may result in the motion being held in abeyance until the court has an opportunity to conference the matter.”
Rule 24 goes on to address various aspects of the pre-motion conference. Notwithstanding the precatory paean to the unfettered right of counsel to make a motion, the restrictions imposed by Rule 24 almost certainly delay the hearing on the motion, once made.
Even without delay, a party seeking to make a motion is required, in essence, to preview the motion with the court. And since the preview will necessarily be on less than a full set of motion papers, and after an oral presentation that may be less than that afforded during oral argument, the presentation by counsel will be truncated. While this may not matter in many instances (think a garden variety disclosure dispute), it will matter in more complex motions.
Because the motion is being previewed by the court, the judge will almost certainly form an opinion as to the merits of the motion and likely convey that to the parties, which can have a chilling effect. If the judge conveys, directly or otherwise, that she believes the proposed motion is without merit, the lawyer who believes the motion is meritorious may decide against making the motion believing it would be an exercise in futility. This not only waives seeking relief in the first instance but bars any possibility of appellate review.
A Court Cannot Condition Making a Motion on Obtaining Prior Approval
What a court cannot do is condition the making of a motion upon receiving prior approval from the court, a point driven home recently by the First Department in Reyes v. City of New York,[5] where that court held:
“Supreme Court improvidently exercised its discretion in denying the motion on the ground that plaintiff failed to first conference the matter with the court in accordance with its Part Rules. The court may not condition the making of a motion on prior judicial approval.”
Reyes cited the court’s decision in Costigan & Co., P.C. v. Costigan:
“Defendants’ motion for a default judgment was improperly denied by the IAS court since it relied on noncompliance with rule 24 (a) of the Rules of the Justices of the Commercial Division. That rule purports to bar a motion unless a prior conference has been held on the issue raised by the motion. Since such a rule effectively conditions the making of a motion on prior judicial approval, it violates a party’s statutory right to make a motion and is void.”[6]
In a subsequent decision citing Costigan, the First Department clarified the procedure where the Rule 24(a) was not followed:
“The Rules of the Commercial Division of the Supreme Court (22 N.Y.C.R.R. 202.70 [g] rule 24) provide for a premotion conference to be held in nondiscovery disputes. The motion court’s part rule states that “[d]iscovery disputes should first be addressed through a court conference prior to the filing of a motion.” Both rules further provide that a party’s failure to comply may result in the motion being held in abeyance until the court has the opportunity to conference the matter. Neither side requested a premotion conference prior to filing the motion and the cross motion. Based on this procedural failure, the court marked both the motion and the cross motion off calendar with leave to renew after plaintiffs’ compliance with the rules. Rather than marking the motions off calendar, the motion court should have scheduled a conference and then decided the motions if the conference did not resolve the parties’ disputes.”[7]
Costigan in turn cited the court’s 1991 decision in Hochberg v. Davis.[8] In Hochberg, the First Department, acknowledging that “it is undisputed that courts have an inherent power over the control of their calendars and the disposition of business before them,” nonetheless issued an order directing the judge whose part rule was at issue “to rescind his Motion Calendar rules for Part 3 of the Supreme Court, New York County, conditioning the making of written motions on prior judicial consent.” The court explained:
“Even though the practice of conditioning the making of motions on prior judicial approval may, in some instances, discourage the filing of frivolous motions, it may also prevent a party from exercising the option to move for relief to which he or she may be entitled.”
Hochberg in turn cited Grisi v. Shainswit,[9] an Article 78 proceeding seeking a writ of mandamus to compel the court to issue a written order denying the plaintiff’s application:
“Since they wish to appeal from the denial of their application for a physical examination and further deposition, and no appeal lies from a ruling, as distinct from an order (citation omitted), which must be in writing (citation omitted), the defendants, petitioners herein, thereupon commenced this proceeding seeking a judgment in the nature of a writ of mandamus directing the court to issue a written order reflecting its denial of their application.”
The Grisi court explained that a writ of mandamus would not ordinarily have been available to plaintiff’s counsel:
“In this case, petitioners are unable to point to any authority, statutory or otherwise, which mandates that a court issue a separately signed, written order embodying its ruling on an oral application. Ordinarily, in such circumstances, we would dismiss the petition for want of a showing of a clear legal right to the relief sought. The reality, though, is that the application was orally presented, not by design, but only because petitioners were denied the opportunity to move formally on papers. In this connection, we note a growing tendency in the Supreme Court civil trial parts to condition the making of a written motion on prior judicial approval. In certain instances, a refusal to allow the motion is accompanied by an express, but oral, denial of the motion. In others, the request is simply refused, effectively resulting in a denial of the motion. In either event, there is no record available for appellate review. In some instances, as here, there is not even a written order. Our difficulty with this practice is that it tends to frustrate a litigant’s statutorily provided right of appeal from an intermediate order.”
The Grisi court concluded:
“[F]undamental rights to which a litigant is entitled, including the opportunity for appellate review of certain orders, cannot be ignored, no matter how pressing the need for the expedition of cases. As already noted, the right to take an appeal from an intermediate order is statutory (citation omitted), as is the right to “full disclosure” of all “material and necessary” evidence (citation omitted). A party cannot be deprived of his right to be heard on a substantive matter not involving a trial ruling by the simple expedient of denying him the right to make a written motion or a record, thereby foreclosing the opportunity for appellate review. At the very least, in instances where the court, in its discretion, refuses to entertain a written motion, the denial of which would be otherwise appealable had the motion been made in writing, the putative moving party should be afforded the opportunity to make a record reflecting the respective positions of the parties on the particular issue and the court’s reasoning and decision, as well as a recitation of the facts and documentation that were considered in the court’s determination.”
Grisi is regarded by most as the ùr-decision in this arena.
Grisi, Hochberg, Costigan, and now Reyes form an uninterrupted line of cases in the First Department, all to the same effect: A court may not condition the making of a motion on prior judicial approval.
What about in the other Appellate departments? None of them cite to Grisi, Hochberg, or Costigan (Reyes is too new) for the proposition discussed in this column. We are unaware of contrary authority in the other departments, so that on the authority of, inter alia, Mtn. View Coach Lines, Inc. v. Storms,[10] trial courts in the other departments are bound to follow the First Department decisions:
“The Appellate Division is a single State-wide court divided into departments for administrative convenience and, therefore, the doctrine of stare decisis requires trial courts in this department to follow precedents set by the Appellate Division of another department until the Court of Appeals or this court pronounces a contrary rule. This is a general principle of appellate procedure, necessary to maintain uniformity and consistency, and, consequently, any cases holding to the contrary are disapproved.”
However, the other departments are free to follow, or not follow, the First Department decisions:
“Such considerations do not pertain to this court. While we should accept the decisions of sister departments as persuasive, we are free to reach a contrary result. Denial of leave to appeal by the Court of Appeals is, of course, without precedential value.”[11]
One other thing before we go: A separate line of cases holds that a court may not restrict the timing of a summary judgment until, for example, all disclosure is certified to be complete: “[I]n view of the fact that CPLR 3212 (a) permits a party to “move for summary judgment … after issue has been joined,” the court improperly limited the appellants to moving for summary judgment only after the court certified that discovery was complete,” citing, inter alia, Hochberg.
Conclusion
It is never easy to tell a judge, “You can’t do that.” (Though some of us no doubt thrill at the prospect of doing so.) However, when it comes to preserving your client’s right to make a motion, in the face of a rule or practice requiring prior approval from the court, it is necessary to tell the judge just that, remembering to preface your admonition with, “Respectfully, Your Honor” or, in truly egregious circumstances, “Most Respectfully, Your Honor.”
With summer a distant memory, and with seemingly every case adjourned earlier in the year put over to the Tuesday after Labor Day, please take a moment and let us know if we missed any decisions from the Second, Third, and Fourth Departments.
David Paul Horowitz, of the Law Offices of David Paul Horowitz, has represented parties in personal injury, professional negligence, and commercial litigation for over 30 years. He also acts as a private arbitrator and mediator and a discovery referee overseeing pre-trial proceedings and has been a member of the Eastern District of New York’s mediation panel since its inception. He drafts legal ethics opinions, represents judges in proceedings before the New York State Commission on Judicial Conduct and attorneys in disciplinary matters, and serves as a private law practice mentor. He teaches classes in New York practice, professional responsibility, and electronic evidence and discovery at Columbia Law School.
Katryna L. Kristoferson is a partner at the Law Offices of David Paul Horowitz and has litigation experience across many practice areas. She has lectured on CPLR updates, motion practice, and implicit bias, and teaches a course on bias and the law at the Elizabeth Haub School of Law at Pace University.
Endnotes:
[1] 22 N.Y.2d 1 (1968).
[2] Braten v. Finkelstein, 235 A.D.2d 513 (2d Dep’t 1997).
[3] Duffy v. Holt-Harris, 260 A.D.2d 595 (2d Dep’t 1999).
[4] 119 A.D.2d 418 (1st Dep’t 1986).
[5] 233 N.Y.S.3d 58 (1st Dep’t 2025).
[6] 304 A.D.2d 464 (1st Dep’t 2003).
[7] Briarpatch Ltd., L.P. v. Briarpatch Film Corp., 68 A.D.3d 520, 520 (1st Dep’t 2009).
[8] 171 A.D.2d 192 (1st Dep’t 1991).
[9] 119 A.D.2d 418 (1st Dep’t 1986).
[10] 102 A.D.2d 663, 664-665 (2d Dep’t 1984).
[11] Id. at 665.
