Committee on the Supreme Court Expressing Support for the Memorandum in Opposition to S. 5212


June 15, 2011

Hon. Sheldon Silver 


New York State Assembly 

LOB 932

Albany, NY 12248


Re: proposed changes to CPLR §§5704 and 5701


The Committee on the Supreme Court of the New York County Lawyers Association (“NYCLA”) supports the Memorandum in Opposition to S. 5212 prepared by the NYSBA Committee on Civil Practice Law and Rules (the “NYSBA Report”). However, NYCLA’s opposition to S. 5212 is focused on the proposed amendments to CPLR 5704(a) and 5701 [b][l], both of which impose significant and unwarranted burdens on the appellate courts, while at the same time permitting intrusive second-guessing of certain functions of the trial courts.


1) The proposed amendment to CPLR 5704(a) permits a single justice of the Appellate Division to grant a temporary restraining order applied for and refused below. In the event that the TRO is issued or refused by a single justice, a full panel can review, on request, within seven days or as soon afterwards as possible. As the NYSBA Report points out, this proposal would make it “too easy for disappointed applicants to forum shop and would encourage sequential attempts to obtain temporary restraining orders refused by the trial court.” At a minimum, this proposal could dramatically increase the burden on the Appellate Division by providing a new path to obtain an expedited appeal of each and every denied TRO. There are also several drafting problems with the proposed legislation, the principal one being that is unclear whether a formal motion is required to obtain temporary restraining orders refused by the trial court.


It should be noted that federal practice provides some analogue and suggests that the proposed amendment permits undue appellate second-guessing of trial court TRO decisions. The All Writs Act, 28 USC 1651(a), has been interpreted as permitting individual appellate judges the power to issue injunctions in aid of their jurisdiction. In practice, such single judge injunctions are used to preserve the status quo. Here, the proposed legislation would impose no similar restriction on the ability of the single appellate judges to second-guess the decisions of the trial courts. As some commentators have noted with respect to analogous federal issues, such a grant of power would be imprudent. See D. Gonen, Judging in Chambers: The Powers of a Single Justice of the Supreme Court, 76 Univ. Cin. L. Rev. 1159, 1188 (2008) (“The Supreme Court should grant interim relief solely when necessary to preserve its own jurisdiction or perhaps when the issue is one of extreme national importance. Granting interim relief as a matter of balancing the equities and protecting the interests of the parties is properly the function of the lower federal courts… the lower federal courts will generally have a greater competence than the Supreme Court to balance the equities due to their greater familiarity with the merits of the cases. “)


2) The proposed amendment to CPLR 5701 [b] [1] would similarly impose new burdens on the appellate courts by permitting new interlocutory appeals in Article 78 proceedings. On its face, the proposal would make all interlocutory orders in such proceedings appealable as a matter of right. It is unclear why this change is necessary. The supporting memorandum states that the purpose of the measure is to make TROs and preliminary injunctions in Article 78 cases appealable. However, the legislation itself sweeps in many more orders than just TROs and preliminary injunctions. In addition, as the NYSBA Report points out, temporary restraining orders outside of the Article 78 context are not generally appealable by full appellate review and where they are reviewed they are reviewed pursuant to the limited – and faster – review of CPLR 5704. There is no reason to treat TROs in the Article 78 context differently from all other TROs.


NYCLA mainly agrees with the NYSBA Report regarding two other aspects of S. 5212, but its opposition to S. 5212 is based largely on the two provisions above. The two other provisions of S. 5212 are set out below.


  1. Proposed CPLR 5701(a)(4) would permit an appeal in connection with those proceedings in which there is no adverse party. The most common type of such proceeding is an application of a name change. Currently, according to the NYSBA memo, “NY practice in this area has been confused and has led to difficulty. A number of courts have concluded that there is no appellate right in a non-adversarial proceeding.” The NYSBA Report supports this change. NYCLA agrees with this assessment because of the need to clarify uncertain law in this area.


  1. Proposed CPLR 6313 would set a maximum 14-day duration of a temporary restraining order contemplating an initial return. If an adjournment is not thereafter granted on consent, the TRO could be extended a single time for no more than 14 days for good cause. For the reasons set out in the NYSBA report, NYCLA opposes the proposed change because it imposes a rigid process that may be unsuited to particular cases. In addition, as the NYSBA Report observes, strict time limits of 14 or 28 days may not be workable in the state courts, which are burdened with what the NYSBA Report terms a “sheer crushing number of preliminary injunction motions.” Most fundamentally, there appears to be no legitimate reason for the arbitrary 14-day limitation, which, conversely, will substantially and adversely deprive litigants in a host of cases of fundamental rights and protections. For example, in foreclosure cases(where homeowners could be unduly pressured to enter into unfavorable agreements in order to avoid foreclosure); arbitration (where litigants would be deprived of a meaningful opportunity to resolve disputes or the court to fashion a remedy); nuisance cases (where time is essential to address often complex competing interests that often involve health and safety issues); matrimonial cases (where potentially both marital assets, the vital issues of orders of custody, including access and visitation with minor children, and prevention of spiriting children out of the jurisdiction, and exclusive use and occupancy of the marital home could be affected); commercial leases (where the long-followed and essential “Yellowstone” injunction protects the premature termination of valuable commercial tenancies and creates an essential tolling period to afford judicial determination of the issues) and finally, residential leases (where the necessary protection of the right to occupy one’s home pending review of agency determinations, or stays of housing court proceedings is vital to the protections of thousands of tenants every year).


For these reasons, the Supreme Court Committee of NYCLA opposes the proposed changes to CPLR §§5704 and 5701.


Howard W. Burns

Hal Kennedy

Special Legislation Sub-Committee of Committee on the Supreme Court