BILL NUMBER:  S5738

 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

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Advisory
Committee on Civil Practice.

This measure, which has been revised from last year's submission,
would amend the CPLR to make changes respecting appellate procedure.
The first change relates to the interplay between CPLR 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 applications that have presented problems: 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 second change is in regard to the
nature of appellate practice when the court below issues an order of
ruling sua sponte and there is a need for appellate review.

Section one of this measure would add a new paragraph four 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 arises as a result of existing sections 5701(a) (2)
and (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, our
Advisory Committee believes that the Appellate Division should not be
constrained on jurisdictional grounds from reviewing such an appeal.

New in this measure this session is a further amendment to CPLR 5701,
the addition of a new paragraph five to CPLR 5701(a), to eliminate an
unnecessary impediment to Appellate Division review of Supreme Court
and County Court orders and rulings. At the same time, this new
paragraph would ensure that a party has an opportunity to request that
the Appellate Division accept material outside the record that may be
necessary for consideration of the appeal.

In the interest of efficiency, many judges increasingly engage in
proactive case management, issuing significant orders at case
conferences held in person or by telephone. These orders are often
issued upon telephonic or letter application by a party or, at times,
by the judge on his or her own initiative. Since such orders are not
issued as a result of a motion made "on notice" (i.e., by formal
notice of motion or order to show cause), they are deemed sua sponte
and not appealable as of right. An appeal may be taken as of right
only from a subsequent order on a motion made on notice to vacate the
sua sponte order (CPLR 5701(a)(3)). Alternatively, the putative
appellant must seek an appeal by permission. CPLR 5701(c).

A party's inability to take an immediate appeal as of right from a sua
sponte order can cause significant prejudice, since the submission,
briefing, hearing and determination of a motion to vacate a sua sponte
order can take a considerable period of time. In our view, the path to
appellate review should not be so restricted. This measure is not
intended to create, expand, or alter, the "trial ruling" exception. It
expressly makes appealable an sua sponte order, but recognizes that a
fuller record may be required to determine the appeal. It gives any
party the right to seek permission to enlarge the record below if
necessary for adequate appellate review. It also ensures that, by
allowing the Appellate Division to take jurisdiction of the appeal, a
party can easily avail itself of the opportunity to seek interim
relief in that court.

Section two of this measure also relates to ex parte applications.
CPLR 5404 provides for review by the Appellate Division or the
Appellate Term of certain ex parte orders. At present, the granting of
any provisional remedy, such as a temporary restraining order (TRO),
without notice, is immediately reviewable in the Appellate Division
under CPLR 5704. However, it has come to our attention that the
present wording of subdivisions (a) and (b) of section 5704 has been
construed to limit the authority of an individual justice to grant a
provisional remedy that was denied in the court below. Our Advisory
Committee has shared with us its belief that the denial of a
provisional remedy often gives rise to emergency conditions,
necessitating immediate relief from a justice of the Appellate
Division. The Committee, therefore, recommends that we promote an
amendment of section 5704 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.

Under prevailing case law, a TRO that is granted after informal notice
to the opposing party is still considered to be an ex parte order for
purposes of CPLR 5704. With adoption of 22 NYCRR § 202.7(f), upon the
recommendation of our Advisory Committee, it is likely that more
temporary restraining orders will be granted after informal notice.
This measure does not in any way affect the current rule that such
TROs are considered to be ex parte for purposes of section 5704,
unless they are made after service of a formal notice of motion or an
order to show cause.

This measure, which would have no fiscal impact on the State, would
take effect on the first of January next succeeding the date on which
it shall have become a law.

 2015-2016 LEGISLATIVE HISTORY :

OCA 2015-63
Assembly 7552 (M. of A. Brennan) (PASSED)

 2014 LEGISLATIVE HISTORY :

OCA 2014-96

 2011-2012 LEGISLATIVE HISTORY :

Senate 4588 (Sen. Bonacic) (PASSED in 2011; ref to Judiciary in 2012)
Assembly 7797 (M. of A. Brennan) (ref to Codes)

 2008 LEGISLATIVE HISTORY :

Senate 7080 (Sen. Volker) (ref to Rules)
Assembly 10497 (M. of A.  Brennan) (PASSED)