Order to Show Cause for Preliminary Injunction and Temporary Restraining Order
(NY)

Summary

This Order to Show Cause for Preliminary Injunction and Temporary Restraining Order is a standard form that attorneys can use to notify their adversary of an application to obtain a preliminary injunction and temporary restraining order in a New York state court litigation. This template contains practical guidance, drafting notes, and optional clauses. A preliminary injunction is a provisional remedy that may be issued to preserve the status quo during the pendency of an action. See Sure-Fit Plastics LLC v. C & M Plastics Inc., 700 N.Y.S.2d 273, 275 (N.Y. App. Div. 1999). To obtain a preliminary injunction the movant must demonstrate: • A likelihood of success on the merits • Irreparable injury absent the preliminary injunction • A balancing of the equities W. T. Grant Co. v. Srogi, 420 N.E.2d 953, 963 (N.Y. 1981). If, on a motion for a preliminary injunction, the movant can show that immediate and irreparable injury, loss, or damages will result before the motion can be heard, a temporary restraining order may be granted without notice. N.Y. C.P.L.R. § 6313(a); 22 NYCRR 202.8-e. Typically, this is done by an order to show cause, through which you can seek a temporary restraining order and have the court set the preliminary injunction motion for an early hearing. See N.Y. C.P.L.R. § 2214(d); see also Mallory v. Mallory, 450 N.Y.S.2d 272, 273 (N.Y. Sup. Ct. 1982). An order to show cause is an application made to the court—on short notice—to obtain an order directing the opposing party to show cause why the movant should not receive the relief sought. The primary advantage to filing an order to show cause is that it shortens the prescribed motion deadlines and allows the court to hear your motion on an expedited schedule. Once presented, the court will set an expedited return date—or time and place the court will hear your motion—and a compressed briefing schedule. New York law permits orders to show cause in a proper case. See N.Y. C.P.L.R. § 2214(d); 22 NYCRR 202.8-d. (Orders to show cause in the commercial division are governed by 22 NYCRR 202.70(g), Rule 19.) This includes cases in which: • There is genuine urgency. Parties commonly use orders to show cause to shorten the eight or 16-day notice periods the C.P.L.R. requires for motions on notice. See N.Y. C.P.L.R. § 2214(b); 22 NYCRR 202.8-d. • A stay is required. A party may file an order to show cause to obtain emergent temporary relief, such as a stay or a temporary restraining order to maintain the status quo until the court hears the motion. 22 NYCRR 202.8-d. • A statute or rule requires an order to show cause. Some statutes or rules explicitly require the court to direct the notice a movant must provide, which the court can do through an order to show cause. 22 NYCRR 202.8-d; see, e.g., N.Y. C.P.L.R. § 5015(a) (requiring a party seeking relief from a judgment to make a motion with such notice as the court may direct). An order to show cause is submitted in lieu of a notice of motion and with the same supporting papers: • Supporting affirmations or affidavits • Any additional evidence –and– • A memorandum of law Your order to show cause must contain most of the same information as a notice of motion, including: • A list of supporting papers upon which the motion is based • A statement of relief sought • The grounds for the motion N.Y. C.P.L.R. § 2214. An order to show cause differs from a notice of motion because in the former, you leave the following items blank: • Return date • Method of service • Time for service to be completed Once you submit your application to the court, the judge will fill in this information. Like all papers submitted to New York courts, except exhibits, your order to show cause must comply with the following formatting requirements: • Be on 8½ by 11-inch white paper (N.Y. C.P.L.R. § 2101(a)) • Use a clear type of no less than 12-point in size, or 10-point size for footnotes (22 NYCRR 202.5(a)) • Be in the English language (N.Y. C.P.L.R. § 2101(b)) • Be double spaced with one-inch margins (22 NYCRR 202.5(a)) • For electronically-submitted memorandums of law, affidavits, and affirmations that exceed 4500 words and were prepared with the use of a computer software program, include bookmarks that provide a listing of the paper's contents and make the papers navigable electronically, unless otherwise directed by the court (22 N.Y.C.R.R. § 202.5(a)(2)) For a full listing of key content covering fundamental civil litigation tasks throughout a New York court litigation lifecycle, see Civil Litigation Fundamentals Resource Kit (NY). For more information on proceeding by order to show cause in New York, see Orders to Show Cause and Ex Parte Applications (NY). For more information on preliminary injunctions and temporary restraining orders, see Provisional Remedies Fundamentals (NY), Pretrial Injunctive Relief: Seeking a Preliminary Injunction (NY), and Pretrial Injunctive Relief: Initial Considerations and Drafting Required Documents (NY). For information on other provisional remedies, see Provisional Remedies: Notice of Pendency (NY) and Provisional Remedies: Attachment (NY). For related templates, see Affidavit (NY) and Affirmation (NY). For a related checklist, see Pretrial Injunctive Relief: Seeking a Temporary Restraining Order (TRO) or Preliminary Injunction Checklist (NY).