How fast can you get a TRO or preliminary injunction in a New York business dispute?

This page explains New York law on emergency court orders in business disputes: the Civil Practice Law and Rules (CPLR), the statewide rules for Supreme Court, and the Commercial Division's own rules, with a short section on federal court. KOR Law LLP's commercial litigation practice handles preliminary injunctions, TROs and other emergency relief. The honest answer to "how fast" is that the rules allow a very quick first order in the right case, but they also build in notice, evidence and money requirements that take time to meet.

What is the difference between a TRO and a preliminary injunction?

A preliminary injunction is an order that stops the other side from doing something while the lawsuit is pending. Under CPLR 6301, it may be granted where the defendant is doing, or threatens to do, an act that violates the plaintiff's rights in the subject of the lawsuit and would tend to make the final judgment ineffectual, or where the plaintiff has demanded a judgment restraining an act that would injure the plaintiff if it went on during the case. The Court of Appeals has summarized what the moving party must show: a probability of success on the merits, a danger of irreparable injury without an injunction, and a balance of equities in its favor (Nobu Next Door v Fine Arts Housing, 2005).

A temporary restraining order, or TRO, is a shorter bridge. It holds things in place until the court can hear the injunction motion, and it may be granted where immediate and irreparable injury, loss or damage will result unless the defendant is restrained before that hearing (CPLR 6301, 6313(a)). The statute makes the TRO part of the injunction motion, so you ask for both in one set of papers.

How does an emergency application move through a New York court?

1. The lawsuit and the motion. A preliminary injunction is sought in a lawsuit. The notice of motion may be served with the summons or at any time after it and before judgment (CPLR 6311(1)). In practice the complaint, the motion and the request for a TRO are often prepared together.
2. The evidence. The plaintiff must show, by affidavit and other evidence, that there is a cause of action and that the defendant is doing or threatening the harmful act (CPLR 6312(a)). For a TRO, the papers must also show why the injury is immediate and irreparable before a hearing can be had (CPLR 6313(a)).
3. The order to show cause. Urgent motions are usually brought by order to show cause, which a judge signs to set the hearing date. In the Commercial Division, that route is reserved for genuine urgency, and applications for provisional relief are the rule's own example (Commercial Division Rule 19, 22 NYCRR 202.70(g)).
4. Notice of the TRO request. Any application for a TRO or stay must include an affirmation showing either significant prejudice from giving notice or a good faith effort to tell the other side the time, date and place of the application, so it can appear (22 NYCRR 202.7(f)). The Commercial Division adds that notice must include copies of all supporting papers (Rule 20).
5. The judge. An ex parte application brought to a judge outside the county where the case is venued is referred back to that county unless the judge finds that the urgency requires an immediate decision (22 NYCRR 202.7(e)). The judge decides whether to sign the order to show cause and whether to include a TRO. If a TRO is granted, the hearing must be set at the earliest possible time (CPLR 6313(a)).
6. Service. Unless the court orders otherwise, the TRO, the papers it was based on and the notice of hearing must be personally served in the same manner as a summons (CPLR 6313(b)).
7. Opposition and hearing. The defendant answers with its own evidence. If the plaintiff's papers establish the required elements, a factual dispute raised by the defendant is not by itself a reason to deny the motion; the court decides, by a hearing or otherwise, whether each element exists (CPLR 6312(c)).
8. The undertaking. Before a preliminary injunction is granted, the plaintiff must give an undertaking, in an amount the court fixes, to pay the defendant's damages and costs caused by the injunction if it is finally determined that the plaintiff was not entitled to it (CPLR 6312(b)).

So what actually decides the speed?

The first order can come quickly when the papers are ready and the danger is plain, because a TRO is designed for harm that cannot wait for a hearing. What takes time is usually on the applicant's side: gathering documents, writing a sworn account that a judge can act on, and giving the notice the rules require. After a TRO, the preliminary injunction hearing is set "at the earliest possible time," but that is a court's calendar, not a promise of a particular day (CPLR 6313(a)). If the facts are seriously disputed, the court may hold a hearing before deciding (CPLR 6312(c)), and that adds time. The undertaking must also be in place before the injunction issues (CPLR 6312(b)).

Where the case is heard matters too. A case that qualifies for the Commercial Division follows that court's Rules 19 and 20 on top of the statewide rules, as explained in whether your business dispute belongs in the New York Commercial Division. A case in federal court follows Rule 65 instead.

What changes the answer?

• State or federal court. A federal TRO issued without notice expires at the time the court sets, not more than 14 days, unless extended for good cause or by consent, and the injunction motion must be heard at the earliest possible time (Fed. R. Civ. P. 65(b)(2), (3)). How the two systems compare for a business case is covered in whether a New York business dispute should be filed in federal or state court.
• Whether notice would defeat the purpose. A TRO without notice requires a showing of significant prejudice from giving notice (22 NYCRR 202.7(f); Commercial Division Rule 20).
• What you need stopped. If the fear is that the other side will move or hide assets before a money judgment, an order of attachment is another provisional remedy, available where a defendant with intent to defraud creditors has disposed of or hidden property or is about to (CPLR 6201(3)).
• How disputed the facts are. Contested facts can lead to a hearing before a decision (CPLR 6312(c)).
• The size of the undertaking. The court fixes the amount, and the plaintiff must post it before the injunction is granted (CPLR 6312(b)).
• Who the defendant is. No TRO may be granted in an action arising out of a labor dispute, or against a public officer, board or municipal corporation of the state to restrain the performance of statutory duties (CPLR 6313(a)).

Which business disputes lead to emergency applications?

Most arise when waiting for a final judgment would leave nothing to win. Common settings include a fight among owners over control of the company's accounts, records or premises, which often surfaces through the warning signs that a partnership or LLC dispute is headed to court. Another is a secured lender's plan to sell pledged ownership interests: a court may restrain a disposition of collateral if the secured party is not proceeding in accordance with Article 9 (UCC 9-625(a)), and the mechanics of that kind of sale are in what a UCC foreclosure sale of an ownership interest involves.

Transfers of property to insiders are a third setting. In an action against a voidable transfer, a creditor may obtain an injunction against further disposition of the asset (Debtor and Creditor Law 276(a)(3)), as described in whether a creditor can undo a fraudulent (voidable) conveyance in New York. When the underlying claim is that you were deceived into a deal, the elements of that claim matter for the probability of success, and they are set out in what you have to prove to win a fraud claim in a New York business case.

Commercial leases produce a specialized version of this relief. A tenant served with a notice to cure may ask the court to stop the cure period from running out, under a test that does not require a likely win on the merits; the landlord's side of that fight is explained in what a Yellowstone injunction means for the landlord. When the contract requires arbitration, CPLR 7502(c) lets the court grant an attachment or preliminary injunction in aid of the arbitration, and institutional rules offer emergency arbitrators; the two routes are compared in whether you can get emergency relief before an arbitral tribunal is formed.

For example: a co-owner locked out of the company

Common mistakes

• Waiting too long to ask. A TRO rests on harm that cannot wait for a hearing (CPLR 6313(a)). A long, unexplained delay makes that showing harder to believe.
• Skipping the notice affirmation. A TRO request without the affirmation required by 22 NYCRR 202.7(f) is incomplete.
• Relying on conclusions instead of evidence. The rule calls for affidavits and other evidence showing a cause of action and the threatened act (CPLR 6312(a)). Attach the documents.
• Forgetting the undertaking. The plaintiff must post it before a preliminary injunction is granted, and the defendant can later have its damages from the injunction fixed on motion (CPLR 6312(b), 6315).
• Confusing a TRO with a restraining notice. A restraining notice is a post-judgment tool that a judgment creditor's attorney can issue (CPLR 5222), not an emergency order in an open case; see what you can do about a restraining notice on a New York bank account.
• Treating the TRO as the finish line. The defendant may move to vacate or modify a TRO, and a preliminary injunction may be challenged at any time on notice (CPLR 6314).

What to do this week

1. Write down, with dates, what the other side has done and what it says it will do next.
2. Collect the governing documents: the operating or shareholder agreement, the contract, loan papers, and any notice of sale.
3. Save the proof: emails, texts, bank notices, and statements from anyone who saw the conduct.
4. Identify what exactly needs to be stopped, and by when.
5. Think about the money: what an undertaking might need to cover if the court requires one.
6. Talk with counsel promptly, because the papers, the notice and the hearing all take preparation.

Frequently asked questions

Can I get a TRO without telling the other side?

The statute allows a TRO without notice where immediate and irreparable injury will result before a hearing (CPLR 6313(a)). The court rules then require an affirmation showing significant prejudice from giving notice, or a good faith effort to notify (22 NYCRR 202.7(f)). In the Commercial Division, a TRO will not issue ex parte without a showing of significant prejudice (Rule 20).

How much is the undertaking?

The court fixes the amount (CPLR 6312(b)). It must cover the damages and costs the defendant may sustain because of the injunction if it is finally determined that the plaintiff was not entitled to it. For a TRO, an undertaking is in the court's discretion (CPLR 6313(c)).

Can the other side get a TRO lifted quickly?

Yes, it can try. A defendant restrained by a TRO may move, even without notice, before the judge who granted it, or another judge if that judge is absent, to vacate or modify it, and the court may require the defendant to post its own undertaking as a condition (CPLR 6314).

Does a preliminary injunction decide who wins the case?

No. It decides only whether the defendant is restrained while the case goes on. The full dispute, including discovery under the rules described in the discovery limits that apply in the New York Commercial Division, continues afterward.

What happens if the injunction turns out to be wrong?

The defendant's damages caused by the injunction or TRO may be fixed on a motion, and the amount ascertained may be recovered in a separate action (CPLR 6315). The plaintiff's undertaking exists to pay those damages and costs (CPLR 6312(b)).

How long does a federal TRO last?

A federal TRO issued without notice expires at the time the court sets, not more than 14 days after entry, unless the court extends it for good cause for a like period or the restrained party consents (Fed. R. Civ. P. 65(b)(2)). On 2 days' notice, or shorter notice the court sets, the restrained party may move to dissolve or modify it (Fed. R. Civ. P. 65(b)(4)).

Can a minority owner use an injunction in a buyout or dissolution fight?

Interim orders can be part of those cases when assets or control are at risk, but the main claims follow their own statutes. The options are set out in whether a minority shareholder can force a buyout or dissolution in New York.