Should you really file that motion to reargue?
Do you know when it’s a good idea to make a motion to reargue? Too many lawyers make a BIG mistake when deciding whether it’s in their client’s best interest to make the motion.
In New York state courts, the purpose of a motion to reargue is to alert the court that it misunderstood a fact in the record or misconstrued (or misapplied) controlling law. See below my example of a mistake of fact from a case I recently worked on.
As an appellate attorney, I get a lot of requests to help with a motion to reargue, which is often filed at the same time a lawyer is filing the notice of appeal for their client (because the deadline to do both is the same: 30 days from notice of entry of the order at issue).
In my experience, tons of lawyers make a crucial mistake when making a motion to reargue: they confuse the standard requiring them to demonstrate the court made a mistake of fact or law with their position that the court got it wrong.
The purpose of a motion to reargue is not to reassert the same facts and case law because you think the court just didn’t get it the first time. That is the purpose of an appeal. If you don’t understand the nuance, you risk pissing off your judge and wasting your client’s money (because your motion will be denied).
Here’s an example from a case I worked on recently. It was a personal injury case that asserted the theory of res ipsa loquitur to impose liability. As many of you know, res ipsa loquitur requires a showing that the defendant was in control of the place where the accident took place. In our case, the judge granted summary judgment dismissing the claim, on the ground that the defendant did not have control over the accident site. The accident happened inside a construction site that was fenced in by the defendant. We argued that the defendant controlled the accident site because it placed a construction fence there, and the law supported our position. But the judge misread a portion of the record about where the fence was, and it misunderstood the place where the plaintiff fell to be outside the fence.
The judge had clearly misread the record. So we moved for reargument to point it out. And we won. In my decade-and-a-half doing appeals and motions, it is one of the few motions to reargue that has been successful.
I often advise against making a motion to reargue because there is no point of fact or law that the court misunderstood. Lawyers often want to do it anyway because they are sure they are right. They may very well be right. But if the court did not make a specific misunderstanding of fact or law, a motion to reargue is a waste of your time and your client’s money.
If you need help with drafting a motion or opposition, contact me here.
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