May 21, 2017

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NY Commercial Division Requires Supporting Papers to Accompany Notice of TRO

We previously covered a proposed amendment to the New York Commercial Division Rule 20 that aimed to require moving parties seeking a temporary restraining order (“TRO”) to, absent significant prejudice, provide opposing parties with copies of all supporting papers as well as notice before any TRO could be issued. 

The proposed amendment was adopted on April 5, 2017. Effective July 1, 2017, the New York Commercial Division’s Rule 20 will be amended to add the following underlined language:

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.

Public comments received on the proposed amendment were uniformly in favor of the amendment to Rule 20. But a few commenters had substantive notes, which were subsequently addressed in a memo by the Commercial Division Advisory Council’s Subcommittee on Procedural Rules to Promote Efficient Case Resolution (the “Rules Subcommittee”).

First, the Commercial and Federal Litigation Section of the New York State Bar Association supported the proposed amendment as drafted, but suggested that the amended rule require notice and copies of all supporting papers to be provided to the opposing parties “prior to the time that such supporting papers are submitted to the court or clerk.” But the Rules Subcommittee clarified that, in its view, it was sufficient to provide notice and copies of all supporting papers in time sufficient to permit those opposing parties an opportunity to appear and contest the application, as the original draft of the proposed amendment specified. This was because, depending on the circumstances, a party may need to get to court “as quickly as possible to obtain relief, and could be unduly hampered by the necessity of providing copies of supporting papers to opposing parties in advance of filing, particularly if the opposing parties are not yet represented by counsel.”

Furthermore, several commenters, including the New York City Bar Association and the Managing Attorneys and Clerks Association, noted their preference that the amendment be made applicable in state courts beyond the Commercial Division. These entities suggested parallel amendments to 22 NYCRR § 202.7(f), which governs applications for TROs in all courts statewide. Rule 202.7(f) currently specifies that a TRO application must be accompanied by an affirmation demonstrating that a good faith effort has been made to notify the opposing parties of the time, date, and place that the application will be made.  However, it makes no mention of providing copies of all supporting papers.

In response, the Rules Subcommittee noted that the Commercial Division Advisory Council had jurisdiction only to recommend changes to the rules of the Commercial Division, and that a change to Rule 202.7(f) would have to be separately recommended and subjected to public comment before adoption.

The proposed rule was adopted as drafted. Watch this space for further updates on proposed or newly adopted rules.

© 2017 Proskauer Rose LLP.

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About this Author

Law Clerk

Tiffany Woo is a law clerk in the Litigation Department.

  • Columbia Law School, J.D., 2015

    Journal of Law and Social Problems, Executive Design & Layout Editor and Note Editor

  • Yale University, B.A., 2012

    Yale Daily News, Staff Reporter and Staff Designer

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