Both temporary restraining orders and orders issued sua sponte can have a dramatic impact upon any litigation. Since these orders are not appealable as of right and the procedures set forth in CPLR §5704 for “review of ex parte” orders have become less available due to the notice provisions of the court rules, the Appellate Divisions have been required to demonstrate increasing flexibility to insure that there is an avenue for appellate review of these orders.
Where the relief granted by a temporary restraining order or sua sponte order is sufficiently prejudicial, counsel for the aggrieved party must address two critical interrelated goals: (1) finding a vehicle to obtain an immediate stay of the order; and (2) ensuring that the prejudicial ruling will ultimately be reviewed by the Appellate Division on the merits. If the Appellate Division declines to grant leave to appeal or the practitioner is unable to transform the ruling into an order which is appealable as of right, the determination may not be subject to timely appellate review. This article will explore the alternatives available to the practitioner in these circumstances and the differences in the manner in which these issues are addressed by the various judicial departments.
Temporary Restraining Orders
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