There are two ways to apply to a court in New York State, and they are a motion on notice or a motion brought by Order to Show Cause. Motions on notice require a certain amount of time before the court hears arguments, and then more time before the motion is decided. The attorney making the motion chooses the return date in accordance with the rules of the court where is case is assigned.
An Order to Show Cause is the second way to commence a motion, and it is usually used for emergency applications. An Order to Show Cause is also necessary if some immediate relief is needed, such as a stay, if there is not enough time for a motion on notice, and if a different type of service is required.
Court rules require that an adversary have at least 24-hour notice that an Order to Show Cause will be presented to court so that they may appear and argue against any interim relief. Similarly, the party must submit an affidavit that the application is indeed an emergency.
The courts in Nassau and Suffolk County will generally accept any Order to Show Cause, and the requirement that the application be an emergency is often overlooked. The courts in the City of New York, however, may not consider a person being evicted from their house an emergency until one or two days before the eviction date.
The most often reason an Order to Show Cause is used to stay the case until the application is resolved. It is a way to keep everything in the status quo until the court has a chance to review. When an application made to the court is to freeze another court, it is called an injunction. A court can only stay its own proceedings, and while a court may “stay” a proceeding in another court, the correct term is an injunction.
The most common Orders to Show Cause that we commence are to stay an auction or to stay an eviction proceeding after auction.
When an Order to Show Cause is presented for an injunction, there is usually an application for a temporary restraining order, which will freeze the case until the application is decided. If the motion is granted, the TRO becomes a preliminary injunction.
In landlord/tenant court, an Order to Show Cause is submitted to stay or hold off the eviction proceedings and/or the sheriff of Marshal. The courts will often grant at least one Order to Show Cause, especially if the petition or complaint was granted by default.
An Order to Show Cause is a powerful tool that can be used to immediately halt unwanted legal action.