Notice of Motion
(Motion to Compel Discovery) (NY)

This Notice of Motion is a standard form that attorneys can use to make a written motion on notice to compel discovery under New York Civil Practice Law and Rules (C.P.L.R.) 3124 in a civil action in New York State Supreme Court. This template contains practical guidance, drafting notes, optional clauses, and alternate clauses. Under the C.P.L.R., you may make a motion to compel discovery when a person fails to respond to or comply with your disclosure requests, including: • A deposition notice • Deposition questions • A written demand for discovery and inspection (i.e., document requests) • Written interrogatories See N.Y. C.P.L.R. 3124. However, you may not file a motion to compel notice to admit responses. See N.Y. C.P.L.R. 3124. If a party fails to timely respond to your notice to admit, the court will deem the requested facts admitted and no further relief is necessary. See N.Y. C.P.L.R. 3123(a); Watson v. City of New York, 576 N.Y.S.2d 864 (1st Dep't 1991). Under C.P.L.R. 3124, you may move to compel disclosure from both parties and nonparties. See N.Y. C.P.L.R. 3122(a)(1), 3124. The C.P.L.R. authorizes the court to compel: • Compliance with the disclosure request –or– • A response from the noncompliant party See N.Y. C.P.L.R. 3124. Before filing a motion to compel, you must confer with opposing counsel in a good faith effort to resolve the issues raised by your motion. See 22 NYCRR § 202.20-f; 22 NYCRR § 202.7(c). This conference can occur in-person or by telephone. 22 NYCRR § 202.20-f. If you and your adversary cannot resolve the discovery dispute, you must support your discovery motion with an affidavit or affirmation attesting that you conducted the conference and identifying: • The date, time, and length of the conference • All participants • The nature of the parties' communication • The issues discussed –and– • Any resolutions agreed to by the parties See 22 NYCRR § 202.20-f; 22 NYCRR § 202.7(c). If a conference does not occur due to your adversary's unreasonable failure or refusal to participate, your affirmation must specifically detail all efforts made to confer with opposing counsel prior to your motion filing and your adversary's responses. See 22 NYCRR § 202.20-f; 22 NYCRR § 202.7(c). The C.P.L.R. requires a notice of motion for every motion the moving party files within the C.P.L.R.'s requisite notice period, as opposed to an order to show cause where the court fixes the governing motion dates. See N.Y. C.P.L.R. 2214(a). You must include the following information in your notice of motion: • Supporting papers. List each supporting paper you will file with your motion (e.g., witness affidavit, memorandum of law). See N.Y. C.P.L.R. 2214(a); 22 NYCRR § 202.7. • Time and place. You must specify in your notice of motion the time and place the court will hear your motion—commonly known as the return date. See N.Y. C.P.L.R. 2214(a); 22 NYCRR § 202.7. The moving party selects the return date. While most courts allow you to designate any regular business day as your return date, you should determine whether your court has set motion days by consulting: o The court's local rules –and– o Your judge's individual rules • Answering papers. You must notify your adversary of his or her deadline for filing an opposition or a cross-motion. See N.Y. C.P.L.R. 2214(b). • Oral argument. You should note whether you are requesting oral argument. See 22 NYCRR § 202.8(d). • Requested relief. Briefly describe your requested relief and the grounds for your request. See N.Y. C.P.L.R. 2214(a). Your demand may include: o Alternative relief –or– o Several different types of relief • Affirmation of good faith. If you are filing a discovery motion, you must include a statement that you attached to your motion papers an affirmation of good faith indicating that you conferred with opposing counsel in an effort to resolve the issues raised in your motion. See 22 NYCRR § 202.7(b). For a full listing of key content covering fundamental civil litigation tasks throughout a New York court litigation lifecycle, see Civil Litigation Fundamentals Resource Kit (NY). For more information on making a motion to compel discovery in New York State Supreme Court, see Motion to Compel Discovery: Making and Opposing the Motion (NY). For a model supporting affirmation and memorandum of law, see Affirmation (Motion to Compel Discovery) (NY) and Memorandum of Law (Motion to Compel Discovery) (NY). For more information on computing and extending time in New York Supreme Court, see Computing and Extending Time in Litigation (NY).