§ 6313.Temporary restraining order.

Subd (a) of this section is derived from CPA § 882, with simplification of language but no intended change in substance. See also § 6301. The last phrase of next to the last sentence has been inserted to preclude a restraining order without notice against a public officer, board or municipal corporation of the state; this, except for expansion to include municipal corporations, is in accord with the last phrase of CPA § 879. When a temporary restraining order is granted, the hearing on the application must be set down “at the earliest possible time.” The restraining order is therefore usually included in an order to show cause, for the notice of motion procedure would result in an unnecessary delay. The quoted words are a simplification of the language of CPA § 882 with no intended change in meaning.

Subd (b) of this section replaces CPA § 883, which provided that an “injunction order” be served by “delivering a copy thereof.” That personal delivery was contemplated may be inferred from the second sentence of CPA § 883, which provided for service upon a corporation “as prescribed by law for making personal service of a summons.” In the case of a court order, a certified copy was to be delivered; a judge’s order was served by exhibiting the original and delivering a copy. Under § 6311 as well as CPA § 882, however, a preliminary injunction may not be granted except upon notice. If the defendant has had notice of the motion, no reason appears why the order cannot be served in the manner of any other intermediate order—ordinarily by serving it with a notice of entry by mail upon the defendant’s attorney. See rule 2103. Similarly, the requirement of certification of a court order and exhibiting a judge’s order is unnecessarily stringent; other orders are binding without such formality. Under rule 2220(b), all orders are served in the same manner. See notes to rule 2220(b). A temporary restraining order, on the other hand, may be granted without notice (see subd (a); CPA § 882) and personal service in the manner of a summons seems appropriate. Accordingly, this subdivision is limited to service of a temporary restraining order. The provisions of rule 2103, governing service of papers generally, are therefore applicable to preliminary injunctions. The former New York statutory law did not expressly indicate, as does the Federal rule, that an injunction is binding “upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.” Fed R Civ P 65(d). The New York decisional law, however, is substantially identical to this Federal provision. Thus an injunction may be binding even though not served. See generally 10 Carmody-Wait, Cyclopedia of New York Practice 649, 761–772 (1954). This subdivision is not intended to change this.

Add, L 1962, ch 308, eff Sept 1, 1963; amd, L 1962, ch 318, § 22, eff Sept 1, 1963; L 1964, ch 263, eff Sept 1, 1964; L 1982, ch 235, § 1, eff June 15, 1982.