S5212-2011 Actions

• Jan 4, 2012: REFERRED TO JUDICIARY
• Jun 24, 2011: COMMITTED TO RULES
• Jun 14, 2011: ADVANCED TO THIRD READING
• Jun 13, 2011: 2ND REPORT CAL.
• Jun 13, 2011: AMENDED 5212A
• Jun 7, 2011: 1ST REPORT CAL.1080
• May 3, 2011: REFERRED TO JUDICIARY

S5212-2011 Meetings

S5212-2011 Calendars

S5212-2011 Votes

S5212-2011 Memo

BILL NUMBER:S5212

TITLE OF BILL:
An  act  to  amend  the  civil  practice law and rules, in relation to
appellate review of an ex parte order or applications for  provisional
remedies

PURPOSE OR GENERAL IDEA OF BILL:
To limit the applicability of Temporary Restraining orders to a period
of fourteen days, renewable with an additional fourteen day period. In
addition,  the  bill adopts a method to appeal denials of orders where
there is no adverse party (i.e. - a name change petition).

SUMMARY OF SPECIFIC PROVISIONS:
Section one  of  the  measure  would  add  a  new  paragraph  four  to
subdivision  (a) of �5701 to provide for an appeal in circumstances in
which, due to the nature of the application, there is not  an  adverse
party.

Section  two  of  the  measure would amend subdivision (b) of �5701 to
eliminate from the list of orders that are not appealable as of  right
those  orders  that  are made in proceedings against a body or officer
pursuant to Article 78 of the CPLR. Such orders could then be appealed
as of right pursuant to paragraph two of subdivision (a) of  �5701  to
the same extent as orders entered in other actions and proceedings.

Section  three  of the measure would amend subdivisions (a) and (b) of
�5704 to provide that a single justice of the  appellate  division  or
appellate  term  may  grant  an  order  or provisional remedy that was
denied ex parte in the court  below.  (A  single  justice  is  already
authorized  by  those  sections  to vacate or modify an ex parte order
granted by the lower court.) It would further amend those sections  to
provide  that  in the event a single justice of the appellate division
or appellate term issues an order vacating or modifying  an  ex  parte
order  granted  by the court below, or grants one refused by the court
below, or refuses to vacate, modify or grant any such order,  a  panel
of  the  court  will  review the order de novo within seven days or as
soon thereafter as possible.

Section four of the measure  would  amend  �6313  to  provide  that  a
temporary  restraining  order  ("TRO")  expires  after a period not to
exceed fourteen days unless the court  extends  the  period  for  good
cause  for  one  additional  period  not  exceeding fourteen days. The
measure would require that the reasons for an extension be entered  on
the record.

Section five provides for an immediate effective date.

JUSTIFICATION:

CPLR  �5701  generally  provides for appeals to the Appellate Division
from orders of the Supreme and County Courts. However, there  are  two
species  of  ex parte applications that have presented problems: those
in which by the nature of the application  there  is  not  an  adverse
party and those in which there is an urgent need for appellate review.


Section  one  of  this  measure would add a new paragraph four to CPLR
�5701(a) to provide for an appeal in circumstances in  which,  due  to
the  nature  of  the  application,  there is not an adverse party. The
problem arises as a result of the interplay between CPLR �5701(a)  (2)
and (3), which require that the appealable order shall have been "made
upon  notice"  and  CPLR  �5704, which provides for review of ex parte
applications. There are certain applications, such as  an  application
for  a  legal name change, which do not by their nature provide for an
adverse  party  upon  whom  notice  would  be   served.   While   such
applications  are  not often denied in whole or in part, the Appellate
Division should not be  constrained  on  jurisdictional  grounds  from
reviewing  such  matters  under CPLR �5701 rather than pursuant to the
more summary review provided under CPLR �5704.

An additional amendment proposed by this measure,  in  section  three,
relates  to  appellate  review  of  ex  parte applications. CPLR �5704
provides for review by the Appellate Division or the Appellate Term of
certain ex parte orders. At present, any  order  granted  by  a  lower
court  or  judge  thereof  without  notice  to  the  adverse  party is
reviewable by a single justice of the Appellate  Division  under  CPLR
�5704.

However,  the present wording of subdivisions (a) and (b) of �5704 has
been construed to bar an individual justice of the Appellate  Division
or  Appellate  Term from granting a provisional remedy that was denied
in the court below. The denial of a  provisional  remedy  often  gives
rise  to  emergency  conditions, necessitating immediate relief from a
justice of the Appellate Division.  Accordingly,  a  single  Appellate
Division or Appellate Term Justice should be able to grant an order or
provisional remedy.

The  measure  provides that when a single appellate justice issues (or
declines to issue) an order when asked to review  an  ex  parte  order
that  was  granted  (or  refused)  by a lower court or judge, the full
appellate court shall review the single justice's action within  seven
days  or  as  soon  as  possible  thereafter.  Such  orders  issued by
individual justices can have a substantial effect on the  parties;  in
the  absence  of  further review, that impact will continue, generally
for months, until the appeal is decided. Prompt review by a full panel
of the appellate court of an order that can have  such  an  effect  is
appropriate.

Appeals of Orders Entered in Article 78 Proceedings

Section  5701  of  the  CPLR details the types of orders and judgments
from which a party may appeal to the Appellate Division, either as  of
right  or  by  permission.  Section  two  of  this measure would amend
subdivision (b) of � 5701, which includes in its list of  orders  that
are  appealable  only  by  permission  those orders that are made in a
proceeding against a body or officer pursuant to  Article  78  of  the
CPLR. Thus, TROs (even if issued on notice) or preliminary injunctions
issued in such proceedings are not appealable as of right.  We believe
that  orders  granting or denying a TRO or a preliminary injunction or
other orders in an Article 78 proceeding should be appealable  to  the
same extent as such orders issued in other actions or proceedings.


TROs  and  preliminary  injunctions  issued  in Article 78 proceedings
frequently grant far-reaching relief similar to such remedies in other
cases. Other orders entered  in  such  proceedings  can  have  a  very
significant  impact upon the way that the litigation in the proceeding
is conducted. Moreover, the assumption that Article 78 proceedings are
abbreviated  in  nature and that an appeal should properly await entry
of final judgment is often  not  borne  out  by  practice.  Many  such
proceedings are lengthy and complex; immediate appeals can avoid undue
prejudice  to  a party and promote judicial efficiency by enabling the
trial court to remedy  any  errors  before  it  proceeds  to  a  final
judgment.

Durational Limit on Temporary Restraining Orders

Section  four  of  the  measure will ensure that TROs not continue for
excessive periods of time. Unlike preliminary  injunctions,  TROs  are
generally  granted  upon a showing of immediate and irreparable injury
without any assessment of a plaintiff s likelihood of success  in  the
underlying action. In the Federal court system, rule 65 of the Federal
Rules  of  Civil  Procedure  provides  that  a TRO can be issued for a
period not exceeding fourteen days unless the court extends the period
for one additional like period. The rule requires that the reason  for
such  an  extension  be entered in the record. Thirty-nine states also
place time limits on TROs, thirty-four of which limit such  orders  to
fifteen  days  or  less (typically with an extension of a single "like
period" permitted upon a showing of  good  cause).  In  contrast,  New
York's  statute, CPLR �6313, fails to provide a maximum duration for a
TRO but instead merely requires the court that granted the TRO to  set
a  hearing  for  a  preliminary  injunction  "at the earliest possible
time."

Although  courts  are  supposed  to  schedule  preliminary  injunction
hearings  expeditiously  following  issuance  of  a  TRO,  such orders
frequently  remain  in  effect  for  many  months,  often  without  an
undertaking  (which  is  required  for a preliminary injunction but is
only discretionary for a TRO). In cases where a  party  is  ultimately
found  to  have  been wrongfully restrained, the costs of the wrongful
restraint may be substantial; such costs are not  easily  recouped  in
the   absence  of  an  undertaking.  This  amendment  would  impose  a
reasonable limit on the period that a  TRO  could  remain  in  effect.
Parties  would  still  be  entitled to a preliminary injunction upon a
proper showing (generally of a likelihood of success  on  the  merits,
irreparable  injury,  and  a  balance  of the equities in the movant's
favor) and the posting of an undertaking in an  amount  fixed  by  the
court.

The  need  for  legislation  regarding temporary restraining orders is
highlighted by Article 78 proceedings  where  TROs  have  remained  in
effect  for several months and no ruling has been issued on the motion
for a preliminary injunction  at  great  expense  to  the  public.  We
believe that this measure will result in a more expeditious assessment
of these cases on their merits.

PRIOR LEGISLATIVE HISTORY:
New Bill.

FISCAL IMPLICATIONS:


EFFECTIVE DATE:
This  act  shall  take  effect  immediately  and shall apply to orders
entered on or after such effective date.

S5212-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 
                                         5212
 2011-2012 Regular Sessions
 I N  SENATE
 May 3, 2011
 
 Introduced  by  Sen. BONACIC -- read twice and ordered printed, and when
 printed to be committed to the Committee on Judiciary
 

AN ACT to amend the civil practice law and rules, in relation to  appel
 late review of an ex parte order or applications for provisional reme
 dies
 

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM
 BLY, DO ENACT AS FOLLOWS:

 

Section 1. Paragraph 3 of subdivision (a) of section 5701 of the civil
 practice law and rules is amended and a new paragraph 4 is added to read
 as follows:

 3. from an order, where the motion it decided was  made  upon  notice,
 refusing  to  vacate  or  modify a prior order, if the prior order would
 have been appealable as of right under paragraph two had  it  decided  a
 motion made upon notice[.]; OR
 4. FROM AN ORDER DENYING IN WHOLE OR IN PART AN APPLICATION FOR WHICH,
 BY ITS NATURE, THERE IS NOT AN ADVERSE PARTY.
 

S  2.  Subdivision  (b)  of section 5701 of the civil practice law and
 rules is amended to read as follows:

 (b) Orders not appealable as of right. An order is not  appealable  to
 the appellate division as of right where it:

 1.  [is  made  in  a  proceeding against a body or officer pursuant to
 article 78; or
 2.] requires or refuses to require a  more  definite  statement  in  a
 pleading; or
 [3.]  2.  orders  or  refuses  to order that scandalous or prejudicial
 matter be stricken from a pleading.
 

S 3.

Section 5704 of the civil practice law and  rules,  as  added  by
 chapter  730  of the laws of 1963, subdivision (a) as amended by chapter
 435 of the laws of 1972 and subdivision (b) as amended by chapter 577 of
 the laws of 1966, is amended to read as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD11395-01-1
 
       S. 5212                             2
 

S 5704. Review of ex parte orders OR EX PARTE APPLICATIONS FOR  PROVI
 SIONAL  REMEDIES.  (a) By appellate division.  The appellate division or
 a justice thereof may vacate or modify any order granted without  notice
 to  the  adverse  party  by  any  court or a judge thereof from which an
 appeal  would lie to such appellate division; and the appellate division
 OR A JUSTICE THEREOF may grant any order or provisional  remedy  applied
 for  without  notice  to the adverse party and refused by any court or a
 judge thereof from which an appeal would lie to such appellate division.
 IN THE EVENT A JUSTICE OF THE APPELLATE DIVISION ISSUES AN ORDER  PURSU
 ANT TO THIS SUBDIVISION, OR REFUSES TO DO SO, UPON REQUEST THE APPELLATE
 DIVISION,  WITHIN  SEVEN  DAYS  OR AS SOON THEREAFTER AS POSSIBLE, SHALL
 REVIEW SUCH ORDER OR REFUSAL DE NOVO.
 (b) By appellate term. The appellate term in the first or second judi
 cial department or a justice thereof may  vacate  or  modify  any  order
 granted  without  notice  to  the  adverse party by any court or a judge
 thereof from which an appeal would lie to such appellate term; and  such
 appellate  term  OR A JUSTICE THEREOF may grant any order or provisional
 remedy applied for without notice to the adverse party  and  refused  by
 any  court  or  a  judge  thereof from which an appeal would lie to such
 appellate term.  IN THE EVENT A JUSTICE OF THE APPELLATE TERM ISSUES  AN
 ORDER  PURSUANT  TO  THIS SUBDIVISION, OR REFUSES TO DO SO, UPON REQUEST
 THE APPELLATE DIVISION, WITHIN SEVEN  DAYS  OR  AS  SOON  THEREAFTER  AS
 POSSIBLE, SHALL REVIEW SUCH ORDER OR REFUSAL DE NOVO.
 

S  4.  Subdivision  (a)  of section 6313 of the civil practice law and
 rules, as amended by chapter 235 of the laws of 1982, is amended to read
 as follows:

 (a) Generally.   If, on a motion for  a  preliminary  injunction,  the
 plaintiff  shall  show  that  immediate  and irreparable injury, loss or
 damages will result unless the defendant is restrained before a  hearing
 can be had, a temporary restraining order may be granted without notice.
 Upon  granting  a  temporary  restraining order, the court shall set the
 hearing for the preliminary injunction at the  earliest  possible  time.
 THE  TEMPORARY  RESTRAINING  ORDER  SHALL  EXPIRE AT THE TIME SET BY THE
 COURT, NOT TO EXCEED FOURTEEN DAYS  FROM  THE  GRANTING  OF  THE  ORDER,
 UNLESS  BEFORE SUCH EXPIRATION THE COURT, FOR GOOD CAUSE, EXTENDS IT FOR
 NO MORE THAN ONE ADDITIONAL FOURTEEN DAY PERIOD  OR  THE  ADVERSE  PARTY
 CONSENTS  TO  A  LONGER  EXTENSION. THE REASONS FOR AN EXTENSION MUST BE
 ENTERED IN THE RECORD. No temporary restraining order may be granted  in
 an  action  arising  out  of a labor dispute as defined in section eight
 hundred seven of the labor law, nor against a public officer,  board  or
 municipal corporation of the state to restrain the performance of statu
 tory duties.
 

S  5. This act shall take effect immediately and shall apply to orders
 entered on or after such effective date.

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