CPLR 5704: Appellate Review When a Lower Court Denies an Ex Parte Application

A party who needs emergency relief in a New York court often cannot wait for a motion on notice. The party asks the court, without notice to the other side, for a temporary restraining order, an order of attachment, an order of seizure, or a stay. If the judge refuses, the applicant has no appeal as of right. An ex parte order, or the refusal of one, does not decide a motion made on notice, so it falls outside CPLR 5701. The Legislature filled that gap with CPLR 5704. This page explains what the statute allows, who may invoke it, how the application is made in the Appellate Division and Appellate Term, and how the process plays out in practice.

What CPLR 5704 Provides

CPLR 5704(a) reads: "The appellate division or a justice thereof may vacate or modify any order granted without notice to the adverse party by any court or a judge thereof from which an appeal would lie to such appellate division; and the appellate division may grant any order or provisional remedy applied for without notice to the adverse party and refused by any court or a judge thereof from which an appeal would lie to such appellate division."

CPLR 5704(b) grants the same authority to the Appellate Term with respect to orders of courts from which an appeal would lie to that Appellate Term.

The statute therefore does two separate things. It lets an applicant who was turned away ex parte seek the same relief from the appellate court. It also lets a party who has been hit with an ex parte order ask the appellate court to vacate or modify it. Both uses are original applications, not appeals. There is no notice of appeal, no record on appeal, and no brief in the ordinary sense.

Why an Ordinary Appeal Is Not Available

CPLR 5701(a)(2) permits an appeal as of right to the Appellate Division from an order of the Supreme Court or a County Court only "where the motion it decided was made upon notice" and the order falls within one of the enumerated categories, including an order that "grants, refuses, continues or modifies a provisional remedy." An ex parte application is, by definition, not made upon notice. A judge's refusal to sign an order to show cause, or a decision to sign it while striking the temporary restraining order paragraph, produces no appealable paper.

The distinction matters for strategy. If the same relief had been sought by motion on notice and denied, the losing party could appeal under CPLR 5701(a)(2)(i), and the Appellate Division would review the order under the ordinary rules described at our page on CPLR 5501 and the scope of appellate review. Because an ex parte refusal cannot be appealed, CPLR 5704 is the exclusive route to the appellate court.

Which Court Hears the Application

The application goes to the appellate court that would hear an appeal from the lower court in question.

• Appellate Division (CPLR 5704(a)): ex parte orders and refusals by the Supreme Court, County Court, Family Court, Surrogate's Court, and the Court of Claims. The application is filed in the department whose territory includes the county where the lower court sits.
• Appellate Term (CPLR 5704(b)): ex parte orders and refusals by the Civil Court of the City of New York, the District Courts, and the City Courts within the First and Second Departments, where an Appellate Term has been established. In the Third and Fourth Departments, appeals from those local courts go to County Court, and CPLR 5704 does not apply to them.

The phrase "from which an appeal would lie" is the jurisdictional hook. If the lower court is one whose orders would ordinarily be appealed to a given appellate court, that appellate court has CPLR 5704 authority over its ex parte orders and refusals.

Single Justice or Full Court

Read the statute closely. The Appellate Division "or a justice thereof" may vacate or modify an ex parte order that was granted. Only "the appellate division" may grant relief that the lower court refused. In practice, the application is presented to a single justice, who may grant interim relief pending the court's determination, and the application is then submitted to a panel. The panel may confirm, modify, or vacate the interim order. When the lower court has denied a temporary restraining order, the applicant typically asks the justice for a TRO pending the panel's decision, and asks the panel to grant the TRO through the return date of the underlying order to show cause.

How the Application Is Made

The Practice Rules of the Appellate Division, 22 NYCRR Part 1250, govern the procedure in all four departments, and each department supplements those rules with its own. 22 NYCRR 1250.4 covers motions, orders to show cause, and applications for interim relief. A CPLR 5704 application should contain:

1. A proposed order to show cause or notice of application: identifying the relief requested and, if interim relief is needed, the specific restraint or provisional remedy sought pending determination.
2. An affirmation from counsel: reciting the procedural history, identifying the judge who refused the relief, stating the date of the refusal, and explaining why the relief cannot await a motion on notice in the lower court.
3. The complete set of papers submitted below: the summons and complaint or petition, the proposed order to show cause, supporting affidavits, and exhibits. The Appellate Division decides the application on the same showing that the lower court saw, supplemented by an account of what happened.
4. The refusal itself: the unsigned order to show cause bearing the judge's notation, a signed order with the TRO paragraph struck through, or a transcript or affirmation describing an oral refusal.
5. A statement regarding notice: the rules require the applicant to tell the court whether the adverse party has been notified of the application and, if not, why not. Many justices will require at least telephone notice to opposing counsel before hearing an application for interim relief, even where the underlying application was ex parte.

The application is filed with the clerk of the appellate court. In an emergency, counsel contacts the clerk's office in advance so that a justice is available. Each department publishes procedures for emergency applications, and the clerk will direct counsel to the assigned justice.

Timing

CPLR 5704 contains no filing deadline. Because the application is not an appeal, the 30-day period of CPLR 5513 does not run, and the deadlines for perfecting an appeal in the Appellate Division are irrelevant. The practical constraint is urgency. A party seeking a temporary restraining order that the trial court denied on a Tuesday afternoon should be in the Appellate Division on Wednesday morning. Delay undercuts the claim of irreparable harm that justifies ex parte relief in the first place, and a justice will notice if the applicant waited two weeks to complain about a denial that supposedly demanded immediate action.

For the adverse party seeking to vacate an ex parte order, timing is governed by the order itself. A temporary restraining order typically remains in effect until the return date of the order to show cause, which under CPLR 6313(a) must be set promptly. If the return date is days away, the Appellate Division may decline to intervene and leave the matter for the lower court on the return date.

The Standard the Appellate Court Applies

A CPLR 5704 application is decided as if it were an original application. The Appellate Division does not ask whether the lower court abused its discretion. It asks whether the applicant has met the substantive standard for the relief requested. For a temporary restraining order under CPLR 6301 and 6313, that means a showing that immediate and irreparable injury will result unless the adverse party is restrained before a hearing can be had. For an order of attachment under CPLR 6201 and 6212, the applicant must show a cause of action, a probability of success on the merits, one of the enumerated grounds for attachment, and that the amount demanded exceeds known counterclaims. For an order of seizure under CPLR 7102, the affidavit must satisfy each element of subdivision (c).

This original review differs from the deferential standards that govern most appeals. Our page on standards of review explains how the Appellate Division ordinarily treats discretionary rulings. Under CPLR 5704, that deference falls away. The appellate court exercises its own judgment on the papers.

That said, the appellate courts are reluctant to grant ex parte relief that a trial judge, familiar with the case, has refused. Many applications are resolved by the Appellate Division declining to grant the relief and directing the applicant to proceed on notice in the lower court, sometimes on a shortened schedule. Success generally requires a clear showing that harm will occur before any motion on notice could be heard.

Worked Examples

Example 1: TRO struck from an order to show cause

A commercial tenant in Kings County learns on a Friday that its landlord intends to change the locks over the weekend. Tenant's counsel presents an order to show cause in Supreme Court with a TRO paragraph restraining the lockout. The justice signs the order to show cause, sets a return date ten days out, and strikes the TRO. Counsel immediately assembles the papers submitted below, prepares an affirmation describing the refusal and the imminent lockout, and applies to the Appellate Division, Second Department, under CPLR 5704(a). The assigned justice, after hearing from both sides by telephone, grants a TRO restraining the lockout pending the return date in Supreme Court. The application is then submitted to the panel, which continues the restraint.

Example 2: Order of attachment refused

A plaintiff in New York County alleges that a defendant is transferring assets out of the state to frustrate a judgment. Plaintiff applies ex parte for an order of attachment under CPLR 6201(3). The justice declines to sign the order, citing an insufficient showing of intent to defraud. Plaintiff may not appeal. Plaintiff applies to the Appellate Division, First Department, under CPLR 5704(a), attaching the same affidavits and bank records. The Appellate Division reviews the papers on the CPLR 6212 standard. If the panel agrees with the lower court that the showing of fraudulent intent is thin, it will deny the application and plaintiff may renew on notice below with a fuller record.

Example 3: Adverse party seeks to vacate an ex parte order

A defendant in Nassau County District Court learns that an order of seizure was issued ex parte and that the sheriff has taken possession of equipment. The defendant may move in the District Court to vacate under CPLR 7102 and 5015, or may apply to the Appellate Term for the Ninth and Tenth Judicial Districts under CPLR 5704(b). The Appellate Term will typically ask why the defendant did not first move below. Unless the defendant can show that the District Court is unavailable or that the delay of a motion on notice would cause harm the lower court cannot remedy, the Appellate Term is likely to direct the defendant to proceed in the District Court.

Limits and Common Mistakes

• Using CPLR 5704 for a motion that was on notice: if the adverse party received notice, the resulting order is appealable under CPLR 5701 and CPLR 5704 does not apply. Filing a CPLR 5704 application in that situation wastes time and does not toll the appeal deadline.
• Omitting the papers submitted below: the appellate court decides on the record that the lower court saw. An application that adds new evidence, or leaves out the proposed order that was refused, invites denial.
• Failing to address notice: the rules require disclosure of whether the adverse party knows of the application. An applicant who tries to keep the other side in the dark at the appellate level, without explaining why, damages credibility with the justice.
• Expecting further review: an Appellate Division order on a CPLR 5704 application is a nonfinal, discretionary determination. Review in the Court of Appeals is generally unavailable, and a motion for leave under CPLR 5602 will rarely succeed on such an order.
• Treating denial as the end: denial of a CPLR 5704 application does not bar the applicant from seeking the same provisional remedy by motion on notice in the lower court. In most cases that is the next step, and the Appellate Division's order will often say so expressly.

You can contact the Law Offices of Albert Goodwin by phone at 212-233-1233 or by email at [email protected].