BBG News

APPELLATE UPDATE- CPLR 5704 – A Tool to Obtain Appellate Relief Without Filing an Appeal

Apr 24, 2023

By Magda L. Cruz 


There are occasions in civil litigation when a party requires urgent relief from a lower Court that either declines to issue a temporary restraining order (“TRO”) pending a hearing on the principal motion, or grants a TRO, ex parte, that is, without notice to the opposing party.  The affected party may be aggrieved significantly by the lower Court’s cursory act, such as when the party is trying to stop on-going or imminent harm in a leasehold, or the sudden granting of a TRO without any opportunity to be heard interferes with the party’s rights to enforce a judgment or imposes sudden obligations in a disputed matter.  There is a procedural tool that the aggrieved party may deploy in order to have an appellate Court quickly review the lower Court’s act, and possibly grant, or direct the lower Court to grant, the TRO, or to vacate the injury-causing TRO. 


CPLR 5704 authorizes a justice of the Appellate Division or the Appellate Term to issue an ex parte order or provisional remedy that is refused by a lower Court from which an appeal to the respective appellate Court would lie, or to vacate or modify an ex parte order granted by such lower Court.  This authority is typically utilized sparingly by appellate Courts and, based on their rules, almost always on notice to both sides, but in an appropriate case provides powerful relief, and many times, can be a game-changer. 


Consider an instance where a tenant is committing a serious nuisance in an apartment and due to Court backlogs, the property owner is unable to obtain a Court hearing for many months.  The property owner moves by order to show cause to obtain an expedited trial date, or alternatively, for an interim order to stop the most egregious of the nuisance behavior, but the Court declines to grant any interim relief, and sets a return date for the motion more than a month in the future. 


Turning to the appellate Court in this instance under the authority of CPLR 5704 may enable the property owner to have the appellate Court directly order the lower Court to set an expedited date for the property owner’s order to show cause, or to grant a TRO to abate the nuisance behavior, or both.  No appeal need be filed by the property owner; it only needs to show that orders by the lower Court can be appealed to the specific appellate Court to which the property owner has turned for CPLR 5704 relief, and that the lower Court acted ex parte, not giving the property owner any opportunity to be heard on its emergency application.   


Housing Court matters in Manhattan and the Bronx are appealable to the Appellate Term, First Department.  Therefore, if the order to show cause was made in a Manhattan or Bronx Housing Court case, the CPLR 5704 motion must be made at the Appellate Term, First Department.  If the case originated in the Supreme Court of those counties, then the CPLR 5704 motion would be made at the Appellate Division, First Department. 


Another example where a CPLR 5704 motion may quickly return the parties to the status quo until a hearing on the disputed matter is conducted by the lower Court, is when a party obtains an ex parte TRO staying a proceeding from going forward, such as stopping discovery, precluding a summary judgment motion from being heard, or a trial from continuing.  Such sudden interruptions cause delays and other strategic obstructions that can significantly prejudice the other party.  Here again, CPLR 5704 can provide an opportunity to quickly put the matter before a justice of the appellate Court that hears appeals from the lower Court that issued the ex parte TRO.  The appellate Court justice will review the ex parte TRO, and generally, after hearing from both sides, can vacate or modify the ex parte TRO, and allow the lower Court proceedings to resume. 


Of course, the outcome of any CPLR 5704 motion is dependent upon the facts and legal issues underlying the motion.  However, when faced with a situation involving urgent circumstances, or a material unhinging of the course of litigation, or infringement of substantial rights, the CPLR 5704 procedure should not be overlooked. 


Magda L. Cruz is a partner in the Firm’s Litigation Department, specializing in appeals, and can be reached at 212-867-4466 ext. 326 ( 

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