Relates to appellate review of an ex parte order or applications for provisional remedies.
BILL NUMBER: S5964A
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
SUMMARY OF PROVISIONS : Section 1 amends CPLR §5701 by adding a new paragraph that provides for an appeal in circumstances in which, due to the nature of the application, there is no adverse party.
Section 2 amends CPLR §5704 by adding language that allows a single Appellate Division or Appellate Term justice to grant an order or provisional remedy applied for without notice to the adverse party and refused by the court below.
Section 3 contains the effective date, which is the January first next after the bill shall become law.
JUSTIFICATION : This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Advisory Committee on Civil Practice.
This measure would amend the CPLR regarding appellate review of an ex parte order or an application for a provisional remedy by amending sections 5701 and 5704. CPLR 5701 generally provides for appeals to the Appellate Division from orders of the Supreme and County Courts. However, there are two species of applicants that have presented problems: i.e., those in which by the nature of the application there is no adverse party and those relating to provisional remedies in which there is an urgent need for appellate review.
The measure would add a new paragraph 4 to CPLR 5701(a) to provide for the availability of an appeal in circumstances in which, due to the nature of the application, there is no adverse party. The problem to which this addition is addressed arises as a result of existing section 5701(a) (2) and 5701(a) (3), which require that the appealable order shall have been "made upon notice." 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 routinely denied in whole or in part, we believe that the Appellate Division should not be constrained on jurisdictional grounds from reviewing such an appeal.
This measure also proposes an amendment to CPLR 5704, relating to ex parte applications. Section 5704 provides for review by the Appellate Division of or the Appellate Division or the Appellate Term of certain ex parte orders and, currently, the granting of any provisional remedy, such as a temporary restraining order (TRO), without notice is immediately reviewable in the Appellate Division under its terms.
The present wording of subdivisions (a) and (b) of section 5704 has been construed to bar an individual Appellate Division justice 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. Therefore, section 5704 must be amended to add language allowing a single Appellate Division or Appellate term justice to grant an order or provisional remedy applied for without notice to the adverse party and refused by the court below.
In addition, this provision would amend both subparagraph (a) and (b) of section 5704 to make it clear that an order granted by the trial court in which the court required the moving party to give informal notification to opposing counsel pursuant to Uniform Rule 202.7(f) before a temporary restraining order is granted, does not convert the order to one "on notice.u Unless the order was brought on by formal notice of motion or order to show cause pursuant to CPLR 2211, an appeal from the order will still come within the ambit of 5704, rather than 5701. While the First and Second Departments disagree as to whether informal notification under Rule 202.7(f) converts an order from an ex parte order to an order "on notice", this amendment would allow such temporary restraining orders to be heard pursuant to 5704 however they are characterized by the appellate court.
This measure, which would have no fiscal impact upon the State, would take effect January first next after it shall have become a law.
LEGISLATIVE HISTORY : New Bill.
FISCAL IMPLICATIONS : None.
EFFECTIVE DATE : January first next after it shall have become a law.
STATE OF NEW YORK ________________________________________________________________________ 5964--A 2009-2010 Regular Sessions IN SENATE June 19, 2009 ___________Introduced by Sen. SCHNEIDERMAN -- (at request of the Office of Court Administration) -- read twice and ordered printed, and when printed to be committed to the Committee on Rules -- recommitted to the Committee on Codes in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee 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. 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 FORMAL notice PURSUANT TO SECTION TWENTY-TWO HUNDRED ELEVEN OF THIS CHAPTER 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 forEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD10088-03-0 S. 5964--A 2
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. (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 FORMAL notice PURSUANT TO SECTION TWENTY-TWO HUNDRED ELEVEN OF THIS CHAPTER 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. S 3. This act shall take effect on the first of January next succeed- ing the date on which it shall have become a law.