Relates to appellate review of an ex parte order or applications for provisional remedies

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.