Preliminary Injunctions, TROs, Attachment and Other “Provisional” Remedies
In any business litigation, sometimes a party requires immediate Court action prior to the completion of a lawsuit. In essence, a party may seek interim relief so that any ultimate victory in court is not rendered moot by some conduct which could render the award ineffective.
The law provides specifically delineated provisional relief mechanisms which a Court may effectuate to preserve the so-called “status quo” while the merits of the dispute are finally determined. Make no mistake, the burden of proof to attain each relief mechanism is difficult and each one has its own inherent challenges and advantages. But sometimes great effort corresponds with great reward, because the Court’s determination concerning the merits of whether a given provisional remedy is warranted may provide a basis to project the viability of a given claim.
Likely the most common application for provisional relief is the CPLR Article 62 request for an injunction.
As per CPLR 6201, a preliminary injunction may be granted in any action where it appears that the defendant threatens to do, or is doing, an act in violation of the plaintiff’s rights regarding the subject of the action, and tending to render the judgment ineffectual; or in any action where the plaintiff would be entitled to a judgment restraining the defendant from the commission or continuance of an act which would produce injury to the Plaintiff.
The movant requesting the injunction to maintain the status quo must demonstrate, by clear and convincing evidence:
- a likelihood of ultimate success on the merits;
- the prospect of irreparable injury in the absence of interim relief; and
- a balance of equities tipping in the moving party’s favor.
The determination of an injunction application lies within the Court’s discretion, which is not easily disturbed on appeal to the Appellate Division. Accordingly, the aforementioned prongs cannot be satisfied with pro-forma or rote moving allegations. Each element of the injunction application must be established by clear and convincing evidence in admissible, evidentiary form.
One important note regarding injunction applications is that subject to few exceptions, a party seeking solely monetary relief is not entitled to a preliminary injunction.
The upside of an injunction application is patent: the court may order that pending the ultimate resolution of a litigation, an adversary is precluded from, for example, selling property or other items, contacting former clients, razing a building or distributing counterfeit items.
The Temporary Restraining Order (TRO)
The movant for a preliminary injunction may also request that the Court effectuate immediate relief while the injunction application is pending. The CPLR 6301 request for a Temporary Restraining Order (oftentimes referred to as a “TRO”) is governed by the following:
A Temporary Restraining Order may be granted pending a hearing for a preliminary injunction where it appears that immediate and irreparable injury, loss or damage will result unless the defendant is restrained before the hearing can be had.
The key to a successful TRO application is the demonstration of immediate, irreparable harm.
CPLR Article 62 Attachments
An attachment permits a party to restrain the use of an adversary’s property during the pendency of an action to provide the movant with security pending the resolution of a claim. In that regard, CPLR 6201 provides:
Grounds for attachment
An order of attachment may be granted in any action, except a matrimonial action, where the plaintiff has demanded and would be entitled, in whole or in part, or in the alternative, to a money judgment against one or more defendants, when:
- The defendant is a non-domiciliary residing without the state, or is a foreign corporation not qualified to do business in the state;
- The defendant resides or is domiciled in the state and cannot be personally served despite diligent efforts to do so;
- The defendant, with intent to defraud his creditors or frustrate the enforcement of a judgment that might be rendered in plaintiff’s favor, has assigned, disposed of, encumbered or secreted property, or removed it from the state or is about to do any of these acts;
- The cause of action is based on a judgment, decree or order of a court of the United States or of any other court which is entitled to full faith and credit in this state, or on a judgment which qualifies for recognition under the provisions of Article 53.
An “attachment” functions exactly as it sounds: it is a court order to restrain the use of certain assets or property pending further order of the Court. Unlike an injunction application, which generally cannot be premised upon a request for a money judgment, the attachment application is expressly permissible when a party seeks a money judgment. It is very useful in the event a moving party can satisfy one of the aforementioned subdivisions of 6201, as the movant may be entitled to “freeze” assets located in New York state to satisfy a prospective money judgment.
Other Types of Provisional Relief
A lis pendens, or notice of pendency, is a document putting the public on notice of a pending lawsuit that affects an interest in property. It is recorded in the county clerk’s office where the property at interest is located, and appears on title reports. The effect is that anyone who wants to buy or mortgage the property would know that there is a prior claim to interest in the property, and that a buyer or mortgagee would be bound to the outcome of the pending lawsuit.
In an action to recover a chattel (property other than real estate property, such as a car or a painting), replevin is the provisional seizure of the chattel when the party seeking the order has demonstrated a superior right to the chattel. The party seeking the seizure must establish the probability of success on the merits, but could be defeated by a showing of a good faith defense on the part of the party fighting the seizure.
A temporary receivership is when a person is appointed by the court to take control of designated property and oversee its care and preservation during litigation. The party seeking the order must be asserting some right in a specific property and as such, this relief is not available in an action for money only. However, there is an exception in the context of a fiduciary relationship where the money comes from the proceeds of some specific asset(s). Additionally, the party seeking the order must demonstrate a danger that the subject property will be removed from the state, lost, materially injured or destroyed.
A temporary receiver is empowered to take and hold personal or real property and to sue for, collect, and sell debts or claims upon such conditions and for such purposes as the court shall direct. Temporary receivers typically operate under the strict guidance of the court.
If you believe you have a matter that needs a provisional remedy, please contact us for a free consultation.
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