An application for a temporary restraining order is brought pursuant to CPLR 6313. Movant must demonstrate “a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of equities in [their] favor.” (See Nobu Next Door, LLC v Fine Arts Hous., Inc. (2005) 4 N.Y.3d 839, 840 citing Doe v. Axelrod (1988) 73 N.Y.2d 748, 751.)
How to Structure the Motion
Uniform Rule 202.7 provides for notice except under certain circumstances. Specifically, pursuant to Uniform Rule 202.7 (f), upon an application for an order to show cause that seeks a temporary restraining order, the application must contain an affirmation demonstrating that there will be significant prejudice to the party seeking the restraining order by the giving of notice. In the absence of such prejudice, the affirmation must demonstrate that a good faith effort has been made to notify the party against whom the restraining order is sought of the time, date and place that the application will be made sufficient to permit the party an opportunity to appear in response to the application.... (See, e.g. Garcia v. Time Equities, Inc. (2008) 101988/08, at *3 [The court signed the Order to Show Cause but struck the TRO provision because the papers as presented did not indicate plaintiff's compliance with the notice requirements of Uniform Rule § 202.7(f)].)
The decision to grant or deny provisional relief, which requires the court to weigh a variety of factors, is a matter ordinarily committed to the sound discretion of the lower courts. (Id.)
CPLR § 6301 grants the court the power to issue an order directing that a party be enjoined from performing an act, or to refrain from performing an act which would be injurious. The issuance of a TRO is within the discretion of the trial court.
“A movant seeking a stay or injunction, is required to show:
- the likelihood of ultimate success on the merits;
- irreparable injury to movant absent granting of the preliminary injunction; and
- that a balancing of the equities favors movant's position.”
(Doe v. Axelrod (1988) 73 N.Y. 2d 748; Nobu Next Door, LLC v. Fine Arts Housing, Inc. (2005) 4 N.Y. 3d 839, 833.)
A preliminary injunction should not be granted unless its necessity and justification is clear based on undisputed facts (Residential Board of Managers of the Columbia Condominium v. Alden (1991) 178 A.D. 2d 121, 576 N.Y.S. 2d 859.) The likelihood of ultimate success on the merits requires a prima facie showing of the right to relief (DiMartini v. Chatham Green, Inc. (1991) 169 A.D. 2d 689.)
Irreparable injury requires a showing that there is no other remedy at law, including monetary damages, that could adequately compensate the party seeking relief. (Zodkevitch v. Feibush (2008) 49 A.D. 3d 424.)
The balancing of the equities requires the Court to determine the relative prejudice to each party accruing from a grant or denial of the requested relief (Ma v. Lien (1993) 198 A.D. 2d 186.) CPLR §6313 permits the imposition of a Temporary Restraining Order pending the determination of a motion for preliminary injunction (People v. Asiatic Petroleum Corp. (1974) 45 A.D. 2d 835.)
The Court’s Decision
Pursuant to CPLR § 6313, a temporary restraining order may be granted pending a hearing for a preliminary injunction if it appears that immediate and irreparable injury, loss or damage will result unless the defendant is restrained before a hearing can be had. (Axis Capital, Inc. v. Jaina Sys. Network Inc.(2015) 13 N.Y.S.3d 860, 863.)
The temporary restraining order (TRO) provided for in CPLR 6210 is issued pursuant to CPLR 6313(a), and any damages sustained by reason of the operation of the order are ascertained in accordance with the provisions of CPLR 6315, not by reference to CPLR 6212(e). (A.M. Exports v. Meridien Int'l Bank (1995) 222 A.D.2d 378, 380 citing Salamanca Trust Co. v. McHugh (1989) 156 A.D.2d 1007 [damages under CPLR 6212(e) not recoverable unless property actually attached]; Provisional Protective Comm. v. Williams (1986) 121 A.D.2d 271 [TRO issued pursuant to CPLR 6210 insufficient basis for award of attorney's fees pursuant to CPLR 6212(e)]; Augsbury v. Adams (1985) 108 A.D.2d 978 [CPLR 6212 (e) damages not recoverable where application for attachment denied]).