What's happening
This bill expands appellate review to include ex parte orders, applications for provisional remedies, and certain court-initiated orders.
Why it matters
Increases accountability for judges' ex parte decisions. By allowing appeals of orders made without notice to the other party (ex parte), this bill gives individuals a greater opportunity to challenge unopposed or one-sided judicial actions, potentially protecting against unjust or unchecked use of judicial power.
Expands rights to challenge court-initiated actions. The bill permits appeals from certain orders made by courts on their own initiative (not just in response to party motions). This means parties can now seek review of orders that previously may have been difficult to contest, increasing transparency in court procedures.
Improves access to appellate review for provisional remedies. By specifically including ex parte applications for provisional remedies (like temporary restraining orders or asset freezes), the bill ensures that urgent, short-term court actions impacting parties’ rights or property can be more readily reviewed and potentially reversed, helping to prevent possible abuses or errors.
May reduce inconsistent or unfair outcomes. By making it easier for parties to appeal a broader range of orders, including those without an adverse party or with limited notice, the legislation could lead to more uniform legal standards and fairer treatment across cases.
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Who cares
Headline styles
Allow Appeals on Ex Parte Orders
Plain English, a few words. Used as the page title.
Sponsors
Senator · Senate District 42
No co-sponsors yet.
History
- Referred to judiciary
- Committed to rules
- Advanced to third reading
- 2nd report cal.
- 1st report cal.1129
- Referred to judiciary
Full text
2 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
5738
2017-2018 Regular Sessions
IN SENATE
April 27, 2017
Introduced by Sen. BONACIC -- (at request of the Office of Court Administration) -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary
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
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. Paragraph 3 of subdivision (a) of section 5701 of the civil practice law and rules is amended and two new paragraphs 4 and 5 are 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; or
5. from an order or rulings, except for trial rulings, made on the court's own initiative, with or without notice; on such appeal, if necessary for appellate review, the appellate division may request enlargement of the record or grant a motion for such relief.
§ 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:
§ 5704. Review of ex parte orders or ex parte applications for provisional remedies. (a) By appellate division. The appellate division or a justice thereof may vacate or modify any order granted without notice 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
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06567-02-7
S. 5738 2
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 division.
(b) By appellate term. The appellate term in the first or second judicial department or a justice thereof may vacate or modify any order granted without notice 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.
§ 3. This act shall take effect on the first of January next succeeding the date on which it shall have become a law.
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
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.
Read the full memo (1,021 words)
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)
Summaries, headlines and scores are AI-generated from the official bill text. How we score bills. Source: NYS Open Legislation.