For those of us who practice regularly before the Surrogate’s Court, a situation inevitably arises when an attorney needs to seek temporary injunctive relief on behalf of a client. For example, you represent a beneficiary of a trust who has justifiable concern that the fiduciary may misappropriate assets during the pendency of an accounting proceeding. In order to stave off this possibility, you file an application, by order to show cause, to suspend immediately the fiduciary and to seek preliminary injunctive relief. You also include in your requested relief an application for a temporary restraining order seeking to enjoin the fiduciary from selling, transferring, withdrawing, encumbering or disposing in any manner the trust’s assets pending further order of the court. Now a decision has to be made: Do you alert your adversary of your plan for temporary injunctive relief so that he or she can appear in court and object?

In Supreme Court, the decision is clear—in the absence of significant prejudice, an attorney must demonstrate to the court “that a good faith effort has been made to notify the party against whom the temporary restraining order is sought of the time, date and place that the application will be made in a manner sufficient to permit the party an opportunity to appear in response to the application.” Uniform Rule, §202.7(f).

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