(a) Affidavit; other evidence. On a motion for a preliminary injunction the plaintiff shall show, by affidavit and such other evidence as may be submitted, that there is a cause of action, and either that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff’s rights respecting the subject of the action and tending to render the judgment ineffectual; or that the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff.
R 6312.Motion papers; undertaking; issues of fact.
Article 63. Injunction · Last amended 2019 · Last verified July 21, 2026
In one sentenceCPLR 6312 spells out what a plaintiff must prove by affidavit to win a preliminary injunction, requires an undertaking to cover the defendant's damages if the injunction turns out wrong, and bars a court from denying the motion merely because the defendant raises a factual dispute.
Full Text of CPLR 6312
(b) Undertaking. Except as provided in section 2512 and in actions brought under section two hundred sixty-five-a of the real property law, prior to the granting of a preliminary injunction, the plaintiff shall give an undertaking in an amount to be fixed by the court, that the plaintiff, if it is finally determined that he or she was not entitled to an injunction, will pay to the defendant all damages and costs which may be sustained by reason of the injunction, including:
1. if the injunction is to stay proceedings in another action, on any ground other than that a report, verdict or decision was obtained by actual fraud, all damages and costs which may be, or which have been, awarded in the other action to the defendant as well as all damages and costs which may be awarded him or her in the action in which the injunction was granted; or, 2. if the injunction is to stay proceedings in an action to recover real property, or for dower, on any ground other than that a verdict, report or decision was obtained by actual fraud, all damages and costs which may be, or which have been, awarded to the defendant in the action in which the injunction was granted, including the reasonable rents and profits of, and any wastes committed upon, the real property which is sought to be recovered or which is the subject of the action for dower, after the granting of the injunction; or, 3. if the injunction is to stay proceedings upon a judgment for a sum of money on any ground other than that the judgment was obtained by actual fraud, the full amount of the judgment as well as all damages and costs which may be awarded to the defendant in the action in which the injunction was granted.
(c) Issues of fact. Provided that the elements required for the issuance of a preliminary injunction are demonstrated in the plaintiff’s papers, the presentation by the defendant of evidence sufficient to raise an issue of fact as to any of such elements shall not in itself be grounds for denial of the motion. In such event the court shall make a determination by hearing or otherwise whether each of the elements required for issuance of a preliminary injunction exists.
Plain-English Summary
Subdivision (a) turns the grounds in CPLR 6301 into a concrete filing requirement. On a motion for a preliminary injunction, the plaintiff must show, through affidavit and any other evidence submitted, that there is a cause of action and that one of the two CPLR 6301 grounds is met: either that the defendant threatens or is committing an act violating the plaintiff's rights that would make a judgment meaningless, or that the plaintiff has a claim entitling it to restrain an ongoing or threatened act causing injury. Around this affidavit showing, New York courts have built the three-part standard practitioners now treat as the working test for a preliminary injunction: a likelihood of success on the merits, irreparable harm absent the injunction, and a balance of the equities tipping in the plaintiff's favor.
Subdivision (b) is the price of that relief. Before a preliminary injunction can be granted, the plaintiff must post an undertaking, in an amount the court fixes, promising to pay the defendant's damages and costs if it turns out later that the plaintiff was not entitled to the injunction after all. The rule spells out what that liability covers depending on what the injunction stayed: damages and costs awarded in another action the injunction halted, damages tied to a stay of an action to recover real property or for dower (including lost rents, profits, and waste), or the full amount of a money judgment whose enforcement the injunction stopped. The undertaking requirement gives way in actions under CPLR 2512 and in certain real property actions brought under Real Property Law section 265-a.
Subdivision (c), added in 1996, addresses what happens when the defendant fights back with evidence of its own. Before that amendment, New York case law let a sharp factual dispute in the defendant's papers sink a preliminary injunction motion outright, even where the plaintiff's own showing satisfied every element, a result far stricter than federal practice. Subdivision (c) changes that: as long as the plaintiff's papers demonstrate the required elements, the defendant's evidence raising a factual issue is not, by itself, grounds to deny the motion. Instead, the court must resolve whether each element is met, whether by holding a hearing or by some other means, rather than letting a contested affidavit end the case before it starts.
Frequently Asked Questions
What must a plaintiff include in a motion for a preliminary injunction under CPLR 6312?
An affidavit, and any other supporting evidence, showing a cause of action and either that the defendant threatens an act that would make a judgment meaningless or that the plaintiff is entitled to restrain an ongoing or threatened act causing injury.
What is an undertaking in a preliminary injunction case, and how much does it need to be?
It is security the plaintiff posts, in an amount the court fixes, to cover the defendant's damages and costs if the injunction turns out to have been wrongly granted. CPLR 6312(b) sets out what that liability covers depending on the kind of proceeding the injunction stayed.
Are there exceptions to the undertaking requirement in CPLR 6312?
Yes. The undertaking is not required in actions governed by CPLR 2512 or in certain real property actions brought under Real Property Law section 265-a.
What happens if the defendant submits an affidavit disputing the plaintiff's claims on a preliminary injunction motion?
Under CPLR 6312(c), that dispute alone is not grounds to deny the motion if the plaintiff's own papers establish the required elements. The court still has to determine whether each element exists.
Does a court have to hold a hearing to resolve a factual dispute on a preliminary injunction motion?
Not necessarily. CPLR 6312(c) lets the court decide the disputed elements either by hearing or otherwise, giving it discretion over how to resolve the record before it.
What is the three-part test for a preliminary injunction in New York?
Building on the affidavit showing CPLR 6312(a) requires, New York courts ask whether the plaintiff has shown a likelihood of success on the merits, irreparable harm without the injunction, and a balance of the equities favoring the plaintiff.
Why did CPLR 6312 add subdivision (c) in 1996?
To stop defendants from defeating a preliminary injunction motion by manufacturing a factual dispute alone, a result New York case law had permitted even where the plaintiff's papers met every element, unlike the more flexible federal approach of holding a hearing when a real factual issue exists.
Advisory Committee Notes
Subd (a) of this rule is derived from CPA §§ 816, 877 and 878(1). Cf. CPA § 881. See notes to § 6301. RCP 80 is omitted and no special filing requirement, such as the ten-day provision governing attachment orders (rule 6212(c)), is made for injunction orders. See notes to rules 6112(a), 6212(c). Thus, entry and filing of the order are governed by proposed rule 2220, which covers orders generally. CPA § 901, which provided that on the hearing of the motion for a temporary injunction, or to vacate or modify it, “a verified answer has the effect only of an affidavit,” is omitted. The purpose is obscure (cf. Code Civ Proc § 630, note (Throop ed 1880)), since a verification is nothing more than an affidavit appended to the pleading attesting to its truthfulness.
Subd (b) of this rule is based upon CPA §§ 819, 884, 885, 886, 889, 890, 892 and 893. CPA §§ 887, 888, 891, 896 and 900 stated general rules with respect to security, and have been incorporated in article 25. Cf. CPA §§ 148– 162; RCP 25–27. Since there is no common law liability for damages from an injunction erroneously granted, other than liability for malicious prosecution, the undertaking “creates, and is the sole basis for, the liability.” See 10 Carmody-Wait, Cyclopedia of New York Practice 624, 776 (1954). In the case of a municipal corporation, which is exempt from the giving of security under former § 162, liability was expressly provided by former § 820. CPA §§ 162 and 820 are covered in § 2512. The opening paragraph of this subdivision is derived from former § 893 which set forth the general condition of the undertaking, viz.: to pay the defendant the damages he sustained by the injunction if it is determined that the plaintiff was not entitled to it. Although the particular provisions of former §§ 884, 885, 886, 889, 890 and 892 were treated as exceptions to former § 893, in reality they were elaborations on the damages that a defendant could sustain in the particular situations outlined. The list of exceptions in former § 893 was indeed, unaccountably incomplete, containing former §§ 884 and 886, for example, and not former § 885. Subparagraph 1 of this subdivision is derived from former §§ 884 and 885. The stay of proceedings in another action, which is treated here, should be distinguished from a stay of proceedings in the action in which the stay is granted. The latter is not an “injunction” and the court has wide discretion as to whether to require security. See CPA § 167. The exception for fraud cases in former § 892 has been incorporated into each of the subparagraphs of this subdivision. It was apparently designed to permit a court to set the amount of security at less than the amount of the judgment or award, where circumstances indicated that the posting of full security would be a hardship upon a defrauded defendant. Subparagraph 2 of this subdivision is derived from CPA §§ 889 and 890. Cf. CPA § 990. Although CPA §§ 889 and 890 were phrased in terms of an “action of ejectment,” the civil practice act has long utilized “action to recover real property” in preference to the older phrase. See CPA §§ 990– 1011. The reference in terms of an “action of ejectment” is therefore obsolete and the newer phrase has been substituted. Subparagraph 3 of this subdivision is derived from former § 886. Although former §§ 885 and 886 provided for a deposit of money, CPA § 891 permitted an undertaking to be utilized in lieu of a deposit. This subdivision has been drafted in terms of an undertaking, since § 2501 defines an undertaking to include a deposit. Section 2508 permits modification of security. Cf. CPA § 900; § 6314. The language “prior to the granting of a preliminary injunction” is used as the undertaking should be required, as formerly, only upon the granting of a preliminary injunction and not upon the making of a motion therefor. Cf. CPA § 819.
1996 Recommendations of Advisory Committee on Civil Practice:
The Committee, in conjunction with the Commercial and Federal Litigation Section and with the CPLR Committee of the New York State Bar Association, recommends the amendment of CPLR 6312, relating to preliminary injunctions, to add a new subdivision (c) thereto to provide that, provided the elements required for the issuance of a preliminary injunction are demonstrated in the plaintiff’s papers, the presentation by the defendant of evidence sufficient to raise an issue of fact as to any of such elements shall not in itself be grounds for denial of the motion, and that, in such event, the court shall make a determination by hearing or otherwise whether each of the elements required for issuance of a preliminary injunction exists.
Current law in New York provides that if in papers submitted on a motion for a preliminary injunction “key facts” are in dispute or if there is a “sharp dispute of fact” revealed, the motion must be denied. E.g., Price Paper and Twine Co. v. Miller, 582 N.Y.S.2d 746 (2d Dept. 1992); Hart Island Committee v Koch, 137 Misc.2d 521, 520 N.Y.S.2d 977, 982 (Sup. Ct. 1987). The CPLR does not set forth this as a standard to be applied on such motions, but the rule is well-established. The effect of this rule can be harsh in a significant number of cases. In some cases, the contest over a preliminary injunction will determine an entire legal controversy. In a case, for example, in which the defendant has allegedly copied a customer list and purloined trade secrets, the plaintiff’s opportunity ultimately to obtain damages at a trial may be of absolutely no consolation or use. Since many defendants can present affidavits in which some sort of challenge to the plaintiff can be mounted, the current rule effectively deprives plaintiffs of a realistic and adequate day in court in many cases. Furthermore, the existence of this caselaw on disputes of fact makes the plaintiff’s chance of obtaining meaningful appellate review of the denial of a motion illusory. These limitations upon the adequacy of the preliminary injunction tool are not logically compelled: there is no absolute correlation between sharp disputes of fact and an inability to establish a probability of success on the merits.
New York practice permits the holding of hearings in order to resolve disputes of fact on motions ( CPLR 2218), notwithstanding the rule cited above. The caselaw is sufficiently substantial and well-embedded, however, that hearings on preliminary injunctions appear to be relatively rare. This New York approach contrasts notably with that followed by the Federal courts. Pursuant to Fed. R. Civ. P. 65, hearings are often held on applications for preliminary injunctive relief. To the extent possible, Federal judges decide such motions without holding hearings, but if a substantial issue of fact is presented, a hearing will be held. See 11 C. Wright & A. Miller, Federal Practice and Procedure , Sect. 2949 (1973). The results appear to be greater fairness to applicants without the imposition of undue burdens on opponents of such motions or on the court system.
The Committee proposes to revise CPLR 6312 to make clear that a dispute of fact alone is not grounds for denial of a motion for preliminary injunctive relief. This is accomplished by the addition of a new subdivision (c). In addition, modest alterations are made to the caption of 6312 and to subdivision (a) to make clear the proof on such a motion may consist of testimony at a hearing pursuant to CPLR 2218. The Court, however, is by no means obliged in every instance to call such a hearing. If the disputes of fact are not material or substantial, the court may resolve the motion on the papers alone. The court also may deny a motion despite disputes of fact if it is apparent that the plaintiff has not met the burden fo proof. The changes to CPLR 6312 do not remove or weaken the traditonal obligations of the plaintiff to demonstrate a likelihood of success on the metis, irreparable harm and a balance of the equities in the plaintiff’s favor.
Amendment History
Add, L 1962, ch 308, eff Sept 1, 1963; amd, L 1996, ch 24, § 1, eff Jan 1, 1997; L 2019, ch 167, § 6, effective August 14, 2019.
Source & verification. Provision text, History, and Advisory
Committee Notes are reproduced verbatim from the Consolidated Laws of New York.
Last verified July 21, 2026.
· Official source
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