This bill has been amended

Bill S5212-2011

Relates to appeals to the appellate division

Provides for appellate review of an ex parte order or applications for provisional remedies; permits appeals in article 78 proceedings; relates to time periods for restraining orders.

Details

Actions

  • Jun 7, 2011: 1ST REPORT CAL.1080
  • May 3, 2011: REFERRED TO JUDICIARY

Meetings

Votes

VOTE: COMMITTEE VOTE: - Judiciary - Jun 7, 2011
Ayes (14): Bonacic, DeFrancisco, Flanagan, Fuschillo, Lanza, Little, Nozzolio, O'Mara, Ranzenhofer, Saland, Breslin, Dilan, Gianaris, Perkins
Ayes W/R (6): LaValle, Zeldin, Adams, Serrano, Squadron, Stavisky
Nays (3): Hassell-Thompson, Espaillat, Krueger

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.


Text

STATE OF NEW YORK ________________________________________________________________________ 5212 2011-2012 Regular Sessions IN 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:
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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