In Fried v. Holding, 2011-00620, NYLJ 1202614927053, at *1 (App. Div., 2nd, Decided August 7, 2013) Justice Balkin, in an opinion for the court clarified the rules with regard to the service of a notice of cross motion. She pointed out that before 1981, CPLR 2215 ("Relief demanded by other than moving party") said: "At least three days prior to the time at which the motion is noticed to be heard, a party may serve upon the moving party a notice demanding relief, with or without supporting papers. Relief in the alternative or of several different types may be demanded; relief need not be responsive to that demanded by the moving party."
This vaguely worded provision caused uncertainty about what, exactly, was "a notice demanding relief." The Judicial Conference and the Chief Administrator proposed a solution, namely, the insertion of the phrase "of cross-motion" into the first sentence of CPLR 2215, so that it would say: "[a]t least three days prior to the time at which the motion is noticed to be heard, a party may serve upon the moving party a notice of cross-motion demanding relief, with or without supporting papers." A memorandum submitted in support of the statutory amendment indicated that the proposed amendment was "strictly intended to clarify the obligations of a cross-movant [and] is not intended to place any restriction on the court's powers to grant affirmative relief" (Mem. Office of Court Admin., McKinney's Session Laws 1980, at 1965). The Legislature adopted the change (see L 1980, ch 132). Despite the hope and intent to clarify the "obligations" of a cross movant, the Memorandum itself led to some confusion over whether a notice of cross motion is mandatory 3. Precedent on the issue has not been consistent (see Weinstein-Korn-Miller, NY Civ Prac CPLR ¶2215.01 at 22-89).
Justice Balkin concluded that 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, the Second Department was in agreement with the Appellate Division, Third 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.
Justice Balkin emphasized that as with most matters addressed to a court's discretion, more than one factor is relevant, including the need to encourage careful, forthright practice. Other relevant factors include the interrelatedness of the relief requested by the nonmoving party and the relief requested in the main motion, the prominence in the opposition papers of the affirmative request for relief and the movant's opportunity to address that request, and the interest of judicial economy. Another consideration for careful practitioners is the availability of appellate review. A request for relief made in the absence of a notice of cross motion is not a "motion made upon notice", so an order granting or denying the request is not appealable as of right, and permission to appeal is necessary. By contrast, generally, a party may appeal as of right to challenge the disposition of a motion or cross motion made on notice.
http://www.newyorklawjournal.com/CaseDecisionNY.jsp?id=1202614927053
