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Courts Have Discretion to Grant Affirmative Relief in Absence of a Formal Cross-Motion

In a full-fledged opinion by Justice Balkin, the Second Department determined trial courts have the discretion to determine applications made in the absence of the formal requirements of a cross-motion.  In this case the defendant answered a motion for a default judgment demonstrating a reasonable excuse and a meritorious defense. Included in the answering papers was an application for leave to serve a late answer to compel plaintiff to accept the answer.  Supreme Court granted all the requested relief.  The plaintiff appealed on the ground that the affirmative relief should have been requested through a formal cross-motion.  The Second Department wrote:

Given the language of CPLR 2215, and the contexts in which it is applicable, the most reasonable interpretation of the statute is that 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, at least to have a right that the request be determined on the merits. Otherwise, a party who seeks relief by way of a notice of cross motion would be in a position less favorable than that of a party who merely makes the request without a notice of cross motion: the party who makes a formal cross motion would be required to comply with the notice and service requirements and deadlines imposed by the statute, but a party seeking relief merely by requesting it would enjoy greater flexibility.

Nonetheless, courts retain discretion to entertain requests for affirmative relief that do not meet the requirements of CPLR 2215. Litigants, however, must be cognizant of an important distinction between the two situations: a party in compliance with CPLR 2215 is entitled to have its cross motion considered; a party not in compliance with the statute must hope that the court opts, in the exercise of its discretion, to entertain the request. Thus, we are in agreement with our colleagues in the Appellate Division, 3rd Department, who, in Fox Wander W. Neighborhood Assn. v Luther Forest Community Assn. (178 AD2d at 872), held that, even in the absence of an explicit notice of cross motion, the Supreme Court is not “prohibited” from entertaining the nonmoving party’s request for relief.  Fried v Jacob Holding Inc, 2013 NY Slip Op 05555, 2nd Dept 8-7-13

 

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