NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A9760
SPONSOR: Brennan (MS) 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 provides for review by the Appellate Division
or the Appellate Term of certain ex parte orders. At present, the grant-
ing of any provisional remedy, such as a temporary restraining order
(TRO), without notice is immediately reviewable in the Appellate Divi-
sion 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 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 bean 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 consid-
ered 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.
2011-12 LEGISLATIVE HISTORY: S. 4588 (Sen. Bonacic) (PASSED in 2011;
ref to Jud in 2012)
2011-12 LEGISLATIVE HISTORY: A. 7797 (M. of A. Brennan) (ref to
Codes)
2008 LEGISLATIVE HISTORY:
S. 7080 (Sen. Volker) (ref to Rules)
A. 10497 (M. of A..Brennan) (PASSED)
