When a claimant commences arbitration, an initial focus may be to ensure that the arbitral award ultimately will be enforceable. As we explained in our Feb. 21, 2014 column, CPLR §7502(c) provides an arbitral party the means of achieving this, petitioning the court for preliminary injunctions or orders of attachment in aid of arbitration. While one would expect §7502(c) to be a popular arrow in the quiver of arbitral parties, there continue to be only a handful of cases decided under that statute each year. Despite the relative paucity of recent cases, there has been a recent shift as to how some applications under §7502(c) are resolved.

An appellate division split has long existed regarding the standard for deciding §7502(c) applications. Section 7502(c) provides that whether the eventual arbitration award “may be rendered ineffectual” without provisional relief is the “sole ground” for granting that relief, but it also incorporates the procedural requirements of Article 62 (orders of attachment) and Article 63 (preliminary injunctions). While some courts have focused exclusively on whether the ultimate arbitration award would be ineffective if provisional relief were not granted, see, e.g., Mermaid Marine, Ltd. v. Mar. Capital Mgmt. Partners, 147 A.D.3d 498, 499 (1st Dep't. 2017); Moquinon v. Gliklad, 55 Misc. 3d 1212(A) (N.Y. Co. April 6, 2017); Mascis Investment Partnership v. SG Capital, 2017 NY Slip Op 30813(U) (N.Y. Co. April 21, 2017), others have further required that the movant satisfy the equitable criteria for injunctive relief, e.g., likelihood of success on the merits, irreparable harm and the balance of equities in movant's favor, see, e.g., Rockwood Pigments NA v. Elementis Chromium LP, 124 A.D.3d 509, 511 (1st Dep't. 2015); Founders Ins. Co. v. Everest Nat. Ins. Co., 41 A.D.3d 350, 351 (1st Dep't 2007); In re Thornton & Naumes (Athari Law Office), 36 A.D.3d 1119, 1120 (3d Dep't. 2007).

Recent appellate and Commercial Division decisions have continued the trend towards requiring satisfaction of these equitable criteria for applications for preliminary injunctions. In contrast, they have revived an earlier split as to the role of such factors, if any, in deciding applications for attachment in aid of arbitration. This column addresses those recent Commercial Division decisions addressing §7502(c).