Currently, the New York Civil Practice Law and Rules permit temporary restraining orders (“TROs”) to be issued without notice to the opposing party – though this practice is discouraged by most judges. CPLR § 6313(a). Notice is not required if the moving party can demonstrate that there will be significant prejudice by reason of giving the notice. Commercial Division Rule 20. When notice is required, however, there is no requirement that the movant attach the underlying papers describing the ground for issuing a TRO.In recognition that notice must be meaningful, the Administrative Board of the Courts is considering adopting an amendment to Rule 20 that would require notice to be accompanied by “copies of all supporting papers” that form the basis for issuance of a TRO. The current version of Rule 20 provides:
Unless the moving party can demonstrate that there will be significant prejudice by reason of giving notice, a temporary restraining order will not be issued. The applicant must give notice to the opposing parties sufficient to permit them an opportunity to appear and contest the application.
The proposed amendment makes two changes. First, it appends “ex parte” to the first sentence. The Commercial Division Advisory Council, proponents of the amendment, stated that they intend this to be a “minor correction” of the meaning to apply to “ex parte” TROs. Second, the proposed amendment adds a requirement that the applicant must “give notice, including copes of all supporting papers” to the second sentence. The full text of the proposed amendment is as follows:
Rule 20. Temporary Restraining Orders. Unless the moving party can demonstrate that there will be significant prejudice by reason of giving notice, a temporary restraining order will not be issued ex parte. The applicant must give notice, including copies of all supporting papers, to the opposing parties sufficient to permit them an opportunity to appear and contest the application.
The Commercial Division Advisory Council explains that the purpose of the amendment is to ensure “meaningful” and “adequate notice” to allow the non-moving party to properly oppose the TRO. While acknowledging “that there may be circumstances where it is impracticable” to comply with the rule, ordinarily, “moving papers should be provided to the opposing party prior to the time that they are submitted to the assigned Justice.”
As the Commercial Division Advisory Council notes, the rule change is already embodied in the individual rules of several justices. For example, Justice Kornreich’s Individual Rules of Commercial Division require a TRO movant to provide the other party “a copy of the papers.” Similarly, on the federal side, Judge Laura Taylor Swain of the U.S. District Court for the Southern District of New York requires TRO movants to supply to the opposing party papers in support before presenting those papers in court.”
The New York City Bar is supporting the proposed amendment, though it has suggested the rule change should apply to all New York courts, not just the Commercial Division. Whether this rule change is ultimately adopted, however, is still in the hands of the Office of Court Administration.