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

1 Co-sponsor

• Kevin S. Parker

BILL NUMBER:S4588

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 her Advisory Committee on Civil Practice.

We recommend two changes respecting appellate procedure relating to the interplay between CPLR §§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.

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, we believe that the Appellate Division should not be constrained on jurisdictional grounds from reviewing such an appeal.

The second amendment proposed by this measure also relates to ex parte applications. CPLR §5704 provide.s 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, we understand that the present wording of subdivisions (a) and (b) of section 5704 has been construed to limit the authority of an individual justice from granting a provisional remedy that was denied in the court below. We believe that denial of a provisional remedy often gives rise to emergency conditions, necessitating immediate relief from a justice of the Appellate Division. Accordingly, we recommend an amendment of section 5704 to add language allowing a single Appellate Division or Appellate Tem1justice 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 the adoption of 22 NYCRR §202.7(f), upon the recommendation of our 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 TRO(s) 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 would have no fiscal impact on the State. It would take effect on the first day of January next succeeding the date on which it shall have become a law.

2008 Legislative History: S.7080 (Sen. Volker) [Rules] A.10497 (M. of A. Brennan) [PASSED]