Provides for appellate review of an ex parte order or applications for provisional remedies; permits appeals in article 78 proceedings; relates to time periods for restraining orders.
STATE OF NEW YORK
________________________________________________________________________
5212--A
Cal. No. 1080
2011-2012 Regular Sessions
IN SENATE
May 3, 2011
___________
Introduced by Sen. BONACIC -- read twice and ordered printed, and when
printed to be committed to the Committee on Judiciary -- reported
favorably from said committee, ordered to first report, amended on
first report, ordered to a second report and ordered reprinted,
retaining its place in the order of second report
AN ACT to amend the civil practice law and rules, in relation to appel-
late review of an ex parte order or applications for provisional reme-
dies
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraph 3 of subdivision (a) of section 5701 of the civil
2 practice law and rules is amended and a new paragraph 4 is added to read
3 as follows:
4 3. from an order, where the motion it decided was made upon notice,
5 refusing to vacate or modify a prior order, if the prior order would
6 have been appealable as of right under paragraph two had it decided a
7 motion made upon notice[.]; or
8 4. from an order denying in whole or in part an application for which,
9 by its nature, there is not an adverse party.
10 § 2. Subdivision (b) of section 5701 of the civil practice law and
11 rules is amended to read as follows:
12 (b) Orders not appealable as of right. An order is not appealable to
13 the appellate division as of right where it:
14 1. is made in a proceeding against a body or officer pursuant to arti-
15 cle 78 except an order that grants, refuses, continues, or modifies a
16 preliminary injunction; or
17 2. requires or refuses to require a more definite statement in a
18 pleading; or
19 3. orders or refuses to order that scandalous or prejudicial matter
20 be stricken from a pleading.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11395-02-1
S. 5212--A 2
1 § 3. Section 5704 of the civil practice law and rules, as added by
2 chapter 730 of the laws of 1963, subdivision (a) as amended by chapter
3 435 of the laws of 1972 and subdivision (b) as amended by chapter 577 of
4 the laws of 1966, is amended to read as follows:
5 § 5704. Review of ex parte orders. (a) By appellate division. The
6 appellate division or a justice thereof may vacate or modify any order
7 granted without notice to the adverse party by any court or a judge
8 thereof from which an appeal would lie to such appellate division; and
9 the appellate division or a justice thereof may grant any order or
10 provisional remedy applied for without notice to the adverse party and
11 refused by any court or a judge thereof from which an appeal would lie
12 to such appellate division. In the event a justice of the appellate
13 division issues an order pursuant to this subdivision, or refuses to do
14 so, upon expedited motion the appellate division shall review such order
15 or refusal de novo.
16 (b) By appellate term. The appellate term in the first or second judi-
17 cial department or a justice thereof may vacate or modify any order
18 granted without notice to the adverse party by any court or a judge
19 thereof from which an appeal would lie to such appellate term; and such
20 appellate term or a justice thereof may grant any order or provisional
21 remedy applied for without notice to the adverse party and refused by
22 any court or a judge thereof from which an appeal would lie to such
23 appellate term. In the event a justice of the appellate term issues an
24 order pursuant to this subdivision, or refuses to do so, upon expedited
25 motion the appellate division shall review such order or refusal de
26 novo.
27 § 4. Subdivision (a) of section 6313 of the civil practice law and
28 rules, as amended by chapter 235 of the laws of 1982, is amended to read
29 as follows:
30 (a) Generally. If, on a motion for a preliminary injunction, the
31 plaintiff shall show that immediate and irreparable injury, loss or
32 damages will result unless the defendant is restrained before a hearing
33 can be had, a temporary restraining order may be granted without notice.
34 Upon granting a temporary restraining order, the court shall set the
35 hearing for the preliminary injunction at the earliest possible time.
36 The temporary restraining order shall expire at the time set by the
37 court, not to exceed fourteen days from the granting of the order,
38 unless before such expiration the court, for good cause, extends it for
39 no more than one additional fourteen day period or for a longer period
40 upon consent or to the extent any delay in the consideration of the
41 motion for a preliminary injunction is attributable to the defendant.
42 The reasons for any extension must be entered in the record. No tempo-
43 rary restraining order may be granted in an action arising out of a
44 labor dispute as defined in section eight hundred seven of the labor
45 law, nor against a public officer, board or municipal corporation of the
46 state to restrain the performance of statutory duties.
47 § 5. This act shall take effect immediately and shall apply to orders
48 entered on or after such effective date.
