Temporary Restraining Orders and Preliminary Injunctions

• Author: Michael H. Barr/Burton N. Lipshie/Sharon Stern Gerstman
• Pages: 709-754

Chapter 17

TEMPORARY RESTRAINING

ORDERS AND PRELIMINARY

INJUNCTIONS

QUICK VIEW

Definitions: A temporary restraining order (TRO) maintains the status quo between parties to a suit until the

court can hold a hearing to determine whether to issue a preliminary injunction. A preliminary injunction

maintains the status quo between parties to a suit until the suit is finally resolved.

Scope of Chapter: Grounds for obtaining and opposing temporary injunctive relief. Typical subjects for

temporary injunctive relief. How to obtain and oppose a TRO or preliminary injunction. Vacatur, modification,

and enforcement of TROs and preliminary injunctions. Recovery for the unwarranted issuance, modification, or

vacatur of a TRO or preliminary injunction.

Strategies and Tactics: Counsel should devote just as much preparation to hearings on temporary matters as to

trial on the merits. Temporary orders are not intended as a substitute for a trial on the merits but they sometimes

have that effect. And the ruling may create interim hardships for the losing party and have a significant effect

on the range of settlement offers.

Statutes and Rules: CPLR 6301-6330.

Related Topics: Forum Selection: Venue and Removal, Ch 8; Parties, Ch 14; Motion Practice, Ch 16.

Forms: See digital access for the following forms:

• Form 17:10, Order to Show Cause (With Temporary Restraints Why Preliminary Injunction Should Not Issue).

• Form 17:20, Affidavit in Support of TRO and Preliminary Injunction Application.

• Form 17:30, Order Granting Preliminary Injunction.

• Form 17:40, Affidavit in Support of Motion to Modify Undertaking.

• Form 17:50, Order to Show Cause for Contempt.

• Form 17:60, Order of Contempt for Failure to Comply With TRO or PI.

NEW YORK CIVIL PRACTICE BEFORE TRIAL 17-2

TABLE OF CONTENTS

I. Overview

A. Types of Injunctions

§17:01 Definition

§17:02 Duration

§17:03 Preliminary Injunction

§17:04 TRO

§17:05 Permanent Injunction

§17:06 Prohibitory Injunctions

§17:07 Mandatory Injunctions

§17:08 Temporary Relief Usually Prohibitory

B. Distinguished From Other Pre-Judgment Orders

§17:20 Attachment

§17:21 Lis Pendens

§17:22 Stay

C. Advantages and Disadvantages

1. ADVANTAGES

§17:30 Prevention of Irreparable Harm

§17:31 Strategic and Tactical Weapon

§17:32 Early Resolution Possible

§17:33 Opportunity for Meaningful Decision at Trial

§17:34 Apprise Court of Issues

2. DISADVANTAGES

§17:40 Costly

§17:41 Risk of Losing on Incomplete Record

II. Jurisdiction, Venue, and Parties

A. Subject Matter Jurisdiction

§17:50 Supreme Court

§17:51 County Courts

§17:52 Court of Claims

§17:53 City Court

§17:54 Family Court

§17:55 Criminal Proceedings

B. Venue

§17:60 Same as for Other Motions

§17:61 Exception: Injunctions to Restrain Public Officers

C. Parties

1. MOVANT

§17:70 Plaintiff and Counter or Cross-Claimants

§17:71 Standing to Bring Underlying Action Required

2. PERSONS BOUND

§17:80 Named Defendants

17-3 TEMPORARY RESTRAINING ORDERS AND PRELIMINARY INJUNCTIONS

§17:81 Other Persons

§17:82 Duty of Persons’ Bound

§17:83 Personal Jurisdiction Required

III. Grounds and Defenses

A. Statutory Requirements

1. CPLR AUTHORITY

§17:90 Statutory Authority Required

§17:91 Statutory Grounds [CPLR 6301]

2. UNDERLYING ACTION

§17:100 Judicial Suit Required

§17:101 Money May Not Be Subject of Action

§17:102 Exception: Judgment Rendered Ineffective

B. Judicial Requirements

1. GENERAL POINTS

§17:110 Court’s Discretion

§17:111 Three-Part Test

§17:112 Burden of Proof

2. LIKELIHOOD OF SUCCESS

§17:120 Prima Facie Showing

§17:121 Hearing Is Not on Merits

§17:122 No Injunction when Facts in Sharp Dispute — NY Law Before January 1, 1997

§17:123 Facts in Sharp Dispute — NY Law Effective January 1, 1997

§17:124 Exception: No Harm to Defendant

3. IRREPARABLE INJURY

a. Adequate Legal Remedy

§17:130 Two Requirements

§17:131 What Constitutes Adequate Legal Remedy

§17:132 Money Damages

§17:133 Injuries that Are Difficult to Quantify

§17:134 Adequate Remedies Other than Money Damages

b. Real Injury

§17:140 Injury Must Be Actual

§17:141 Threat Must Be Irreparable and Immediate

§17:142 Injury Must Be to Parties

§17:143 Exception to Injury Requirement

4. BALANCING EQUITIES

§17:150 Application

§17:151 Public Interest

5. DEFENSES

§17:160 The “Fait Accompli” Rule

§17:161 Laches

§17:162 Unclean Hands

§17:163 Preliminary Injunction Provides Ultimate Relief

§17:164 Continuing Supervision and Difficulty of Enforcement