Senate Bill S5212A

                                BILL NUMBER:S5212A

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
(ie. - a name change petition).

SUMMARY OF SPECIFIC PROVISIONS:
Section one of the measure would add a new paragraph four to
subdivision (a) of §570 1 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 §570l 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 §63l3 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 §63l3, fails to provide a maximum
duration for a TRO but instead merely requires the court that granted
the TRO to set a healing 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.