COMMITTEE ON CIVIL PRACTICE LAW AND RULES

REPORT NO. 70 June 10, 1997

A. 7032 By: M of A Weinstein
Assembly Committee: Judiciary

Effective Date: January 1 next succeeding the date on which it shall become a law.

AN ACT to amend the civil practice law and rules, in relation to notification of application for a temporary restraining order.

Law and Sections referred to: CPLR 6313, Civil Service Law 221, Article 7 RPAPL

REPORT PREPARED BY THE COMMITTEE ON CIVIL PRACTICE LAW AND RULES (#21)
  THIS BILL IS APPROVED

        This bill, introduced at the request of the Chief Administrative Judge upon the recommendation of his Advisory Committee on Civil Practice, would amend CPLR 6313 to require prior notification to an adverse party in connection with any application for a temporary restraining order ("TRO") other than in summary proceedings under Article 7 of the RPAPL. CPLR 6313(a), as presently constituted, permits the issuance of a temporary restraining order without notice if the applicant can show that Aimmediate and irreparable injury, loss or damages will result unless the defendant is restrained before a hearing can be had@.

        Under the amended CPLR 6313(a), notification of the application for a TRO would be mandatory unless the applicant shows, by affidavit or affirmation, that the giving of notification is impracticable or would defeat the purpose of the order. If the TRO is granted without notification, the Court must state in its order the reason for dispensing with notification. The bill also codifies established procedures which make notice of an application a necessary predicate to the issuance of a TRO against a public officer, board or municipal corporation of the state by providing that, without notification, no TRO could be granted against such an entity to restrain the performance of statutory duties. The amendment would substantially conform state practice to the notification provisions for obtaining a TRO under Federal Rule of Civil Procedure 65(b).

        The bill provides for the notification to consist of either (1) a telephonic, facsimile or verbal communication with or to the adverse party advising of the application, or (2) a good faith attempt to so communicate. The only evidence required to be presented to the Court of such notification or he attempt to notify would be the sworn testimony of the person acting on behalf of the applicant. The term "notification" is used in the bill, rather than the term "notice," to make clear that the notification to the other party required upon application for a TRO is not the formal eight days' notice required for a formal motion, but rather, the communication to the other party of the fact of the application.

        The bill is sound and should be approved. The opportunity for notice and to be heard before being subject to the command of a court is an essential underpinning of due process. The requirement for notice where feasible, present in Fed. R. Civ. P. 65, but absent in CPLR 6313, reflects Athe fact that our entire jurisprudence runs counter to the notion of court action taken before reasonable notice and an opportunity to be heard has been granted both sides of a dispute. Granny Goose Foods, Inc. v. Brotherhood of Teamsters and Auto Truck Drivers Local No. 70 of Alameda County, 415 U.S. 423, 438 (1974).

        Because the absence of informal notice and an opportunity to be heard goes so fundamentally against modern principles of due process, many judges refuse to enter temporary restraining orders unless the opposing party receives some form of informal notification and an opportunity to be heard. McLaughlin, Practice Commentaries, McKinney's Cons. Laws of New York C6313:1. As Professor McLaughlin points out this is saluatory practice. It is absolutely required under federal practice. Emery Air Freight Corp. v. Local Union 295, 449 F.2d 586 (1968), cert. denied, 405 U.S. 1066 (1972). Unfortunately, nothing in CPLR 6313 requires such informal notice, and, given that omission, many judges will issue ex parte TROs. The availability of such ex parte relief can, and often is, used to subject the unnotified party to substantial abuse and is often used to gain a tactical advantage in litigation. It is a practice utterly inconsistent with due process and procedural fairness.

       CPLR 6313, as currently drafted, fails to reflect these modern principles of procedural due process. There is no requirement in the statute limiting its application to the situation where the giving of informal notice. See Carroll v. President and Com'rs of Princess Anne, 393 U.S. 175, 180 (1968). There is a place in our jurisprudence for ex parte issuance, without notice, of temporary restraining orders of short duration; but there is no place within the area of basic freedoms guaranteed by the First Amendment for such orders where no showing is made that it is impossible to serve or to notify the opposing parties and to give them an opportunity to participate.

        The bill, as crafted, is well designed to permit the court to dispsense with informal notice where appropriate, but only in appropriate circumstances. The possibility for dispensing with the notification requirement would remain for appropriate circumstances, as is the case under Federal Rule of civil Procedure 65(b). Few problems have been encountered since the Federal Rules were amended, in 1966, to require prior notice.

        A further benefit to the bill would that it should curtail unnecessary motion practice. The opportunity to gain a TRO ex parte and thus gain a tactical advantage in the litigation leads many litigants to seek the TRO were they otherwise would not. It also encourages litigants to make such applications in New York state courts rather than in other forums or federal courts where the availability of ex parte relief is far more curtailed. New York's reputation for granting ex parte TROs, unfortunately, well established. Moreover, where notice is afforded to the other side, the Court can hear both sides at the outset and may be able to resolve the matter without the need for further motion. Under the proposed amendment, in many cases the follow-up court appearance now required under current practice after a TRO is served might be eliminated, thereby tending to preserve judicial resources.

        Some members of this committee have expressed the view that the notification requirement should be inapplicable in matrimonial cases because of the high degree of risk of domestic violence which might be occasioned by the mere application, it is difficult to conceive that notice of the issuance of a TRO on an ex parte basis would be any less of an incitement to an abusive spouse. Moreover, the opportunity remains for the applicant to convince the Court to exercise its discretion to dispense with the notification requirement based upon the particular facts in the case before it. The more serious concern raised in matrimonial cases, which of the application for a TRO, since frequently made simultaneous with the commencement of the action, may inspire a defendant to seek to avoid service. Only empirical evidence of such a possible prejudicial effect on plaintiffs seeking to effect service of process in matrimonial cases will support the suggestion of an exception to the notification requirement in matrimonial cases. The committee has also consulted the Family Law Section of the Association, and they have expressed their support for the bill.

        The Committee notes that the bill carves out Article 7 proceedings from the notification requirement apparently to permit tenants to obtain ex parte stays of warrants of eviction. The Committee notes, however, that the notification provision applies only to TROs issued under CPLR 6313. CPLR 6313 governs only TROs granted pending a motion for a preliminary injunction under. A stay of proceedings is not within the scope of CPLR 6313 since those motions do not involve applications for injunctions. Nor are temporary orders of protection governed by CPLR 6313 since those motions have a separate statutory framework. See CPL  530.13; Family Court Act. Art. 4; See also People v. Forman, 145 Misc.2d 115, 546 N.Y.S.2d 755 (Crim. Ct. N.Y. Co. 1989).

        It is suggested that the bill be modified to use the terms the "applicant" and the "adverse party," since all applicants for TROs will be subject to the provisions of the proposed amendment, regardless of their status as plaintiff or defendant in the action in which the TRO is sought.

        In summary, the Committee believes that the proposed bill is sound and needed in order to bring CPLR 6313 in conformity with modern principals of due process.

For the foregoing reasons, the bill is APPROVED.

Person Who Prepared the Report: Richard Kaye, Esq.

Chair of the Committee: Paul H. Aloe, Esq.