The following papers numbered 1 to 1, Read on this ex parte motion filed on noticed on 11/7/22.
PAPERS NUMBERED
Notice of Motion - Order to Show Cause - Exhibits and Affidavits Annexed1
Answering Affidavit and Exhibits
Replying Affidavit and Exhibits
Notice of Cross-Motion - Affidavits and Exhibits
Pleadings - Exhibit
Stipulation(s) - Referees Report - Minutes
Filed Papers-Order of Reference
Memorandum of Law
The Court declines to sign plaintiffs Order to Show Cause (OSC) seeking a temporary restraining order and a preliminary injunction (NY St Cts Elec Filing [NYSCEF] Doc No. 18 at 1). Significantly, plaintiff impermissibly seeks a preliminary injunction without the concomitant initiation of a plenary action. To be sure, there is no evidence on NYSCEF that plaintiff filed a summons
1
(or any other pleading), such that it initiated an action. Moreover, absent a request for a preliminary injunction, a temporary restraining order (TRO) cannot be granted.
A TRO may only 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 (CPLR § 6301; see CPLR § 6313[a] [If, on a motion for a preliminary injunction, the plaintiff shall show that immediate and irreparable injury, loss or damages will result unless the defendant is restrained before a hearing can be had, a temporary restraining order may be granted without notice.]; People v Asiatic Petroleum Corp., 45 AD2d 835, 836 [1st Dept 1974] [CPLR 6301provides for a temporary restraining order Pending a hearing for a preliminary injunction but no such provision is made Following the hearing.]). Moreover, a preliminary injunction may be granted only upon notice to the defendant . . .[and] [n]otice of the motion may be served with the summons or at any time thereafter and prior to judgment. (CPLR § 6311[1] [emphasis added]). Thus, absent the existence of, at the very least, a summons and/or petition initiating an action, a court cannot grant a preliminary injunction (Jou-Jou Designs, Inc. v Intl. Ladies Garment Workers Union, Local 23-25, 94 AD2d 395, 400 [1st Dept 1983], affd, 60 NY2d 1011 [1983] [a preliminary injunction is only a provisional remedy, there can be no doubt that the granting of the motion to dismiss the complaint would serve to dissolve the injunction at the same time.]). Stated differently, unless there is an underlying action which confers statutory authority on the court to grant a preliminary injunction, the court has no jurisdiction to award such relief" (Matter of Hart Is. Comm. v Koch, 150 AD2d 269 [1st Dept 1989]; Caruso v Ward, 146 AD2d 486, 487 [1st Dept 1989]). Absent a request for a preliminary injunction, and of course, jurisdiction to entertain and grant the same, any request for a TRO must be denied.
12/7/2022
FIDEL E. GOMEZ, AJSC
FOOTNOTES
1
. To the extent that document #1 on NYSCEF is denominated as a petition, a review of the document evinces that it is instead an Affirmation in Support of Order to Show Cause for Emergency Relief.
Fidel E. Gomez, J.