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BLOG / 03.01.24 /Fasih Din

Seeking Review Under CPLR 5704: A Powerful Tool in the Arsenal of Legal Remedies

Navigating the legal landscape often requires a deep understanding of procedural rules, especially when faced with the challenges of obtaining timely relief. CPLR 5704(a) emerges as a valuable provision in the New York Civil Practice Law and Rules, offering a remedy where the trial court refuses to issue a temporary restraining order (TRO) for your client – or grants one against your client without notice.

Your client may require immediate relief against such an order, especially when stakes are high, and the clock is ticking. CPLR 5704(a) stands as a potent remedy for parties seeking relief when faced with urgent circumstances or substantial infringement of their rights.

In one such case, the Supreme Court granted an ex parte TRO freezing our client’s bank accounts – bringing the entire business operation to a grinding halt. We immediately filed an emergency application by way of an order to show cause (OSC) to vacate/modify the TRO. However, the trial court denied our application.

Since time was of the essence, we immediately filed an application before the Appellate Division, Second Department for a review of the denial order under CPLR 5704(a). The Appellate Division conferenced the case and rendered a favorable decision within 24 hours, lifting the restraint on our client’s bank accounts and granting our TRO.

In another instance, the Supreme Court signed an ex parte order to show cause against our client and appointed a temporary receiver. The Court ordered our client to hand over its bank accounts and business operation to the receiver. We immediately sought review of the ex parte order under CPLR 5704(a) before the Appellate Division, which expeditiously conferenced the case and rendered a favorable decision staying the appointment of the temporary receiver.

CPLR 5704(a) Review: An Avenue for Relief

Before examining how CPLR 5704(a) has become a powerful tool for obtaining expedited relief from the court, it is crucial to understand the concept of ex parte orders. Ex Parte, derived from Latin, translates to “for one party,” signifying motions or orders granted at the request and for the benefit of one party only. These orders are often temporary, such as restraining orders or account freezing orders, pending a formal hearing or in response to an emergency request for a continuance.

CPLR 5704(a) grants authority to the Appellate Division to review ex parte orders issued by a justice of the Supreme Court, a judge of a Family Court or Court of Claims, or a surrogate to issue a provisional remedy that was refused by the lower court, or to modify an ex parte order granted by such lower court. Importantly, this provision comes into play only when the order is granted without notice to the adverse party. If both parties were heard or appeared before the court, the order is not ex parte.

Procedures for Seeking Review

When faced with a situation where a judge signed an OSC against your client, the remedy lies in an application to the Appellate Division under CPLR 5704(a). At the same time, CPLR 5704(a) offers dual purpose and provides relief where a lower court refuses to sign an OSC for your client.

The effectiveness of CPLR 5704(a) lies in its expeditious response. In most cases, the Appellate Division, Second Department issues orders within a day or so after reviewing the application. This swift response underscores the efficiency and importance of this provision in obtaining prompt resolution.

When faced with critical and time sensitive situations, practitioners and litigants should not overlook the potential relief offered by CPLR 5704(a). By providing a mechanism for swift appellate review, this provision enables parties to address issues such as TROs and ex parte orders that may significantly impact the course of litigation. Seeking review under CPLR 5704(a) can lead to quick and decisive outcomes, making it a valuable tool in the arsenal of legal remedies.