§ 6314.Vacating or modifying preliminary injunction or temporary restraining order.

Two sections of the civil practice act specifically dealt with applications to vacate or modify preliminary injunctions: § 897 governed applications without notice and § 898 governed applications upon notice.

CPA § 897 required the motion to be made on the original papers and “to the judge or justice who granted the order or who held the term of court where it was granted.” The restriction to the original papers was a reiteration of the first sentence of CPA § 822 while the restriction to the original judge was the same as that prescribed by CPA § 131 for vacating or modifying an order other than one for a provisional remedy.

CPA § 897 applied only if the order attacked was granted without notice. With respect to an injunction granted upon notice, the defendant had already had an opportunity to oppose it or to ask a modification and there did not seem to be any justification for a subsequent motion without notice to vacate or modify. An order to show cause could have been used if speed is essential. Prior to 1930, a preliminary injunction could be granted without notice before the defendant answered. In that year, § 882 was amended to require notice for all preliminary injunctions. Laws 1930, c. 378. A further amendment in 1940 qualified this requirement, permitting notice to be dispensed with for a temporary restraining order granted to enjoin the defendant until a hearing could be had on the application for a preliminary injunction. Laws 1940, c. 659. Thus, since 1930, a preliminary injunction without notice, to which CPA § 897 applied, has been prohibited. CPA § 897, which was derived from § 626 of the Code of Civil Procedure without change, was only meaningful as applied to temporary restraining orders.

There may be occasions where relief from a temporary restraining order cannot await the hearing on the motion for a preliminary injunction. CPA § 897, read in the light of CPA § 882 to apply to temporary restraining orders, would have permitted a motion without notice to vacate or modify the temporary restraining order. It has therefore been retained in this limited application in the second and third sentences of this section. The additional alternative was CPA § 897—that the motion may be made to a term of the Appellate Division of the Supreme Court—seems unnecessary, since the section permitted application to another judge if the judge who granted the order was absent or disabled. The motion before the Appellate Division has therefore been deleted, while that before another judge in the absence or disability of the original judge has been retained. Since this absence or disability permits a motion without notice it adds an alternative to rule 2221(2) (requiring a motion on notice to vacate an order made by another judge).

A further provision of CPA § 897 required the affidavit showing the absence or disability to show that “the applicant will be exposed to great injury by the delay required for an application upon notice.” This provision was not directed to the solution of any practical problem. A temporary restraining order is only operative until a hearing on the application for a preliminary injunction may be had—which CPA § 882 required to be set down “at the earliest possible time and [to] take precedence of all matters except older matters of the same character.” Thus an application upon notice to vacate or modify a temporary restraining order would require a hearing held after the temporary restraining order expires. See notes to § 6313(a). Moreover, where application was made under CPA § 897 to the judge who granted the order, the defendant was expressly restricted to the original papers, while before another judge in case of disability or absence, he had the burden—and hence the opportunity—of showing by affidavit, that he “will be exposed to great injury.” While the provision of CPA § 897 for a showing of “injury by the delay required for an application on notice” thus appeared obsolete, there seems no reason why the defendant could not have gone beyond the original papers and shown that continuation of the order would unnecessarily injure him; the judge who granted the restraining order had discretion to modify or vacate it accordingly. To give the judge flexibility, the power to require security as a condition, contained in the last sentence of CPA § 900, has been retained as the last sentence of this section, except where the defendant is a public body or officer.

CPA § 898, which governed a motion upon notice to vacate or modify, also remained virtually unchanged since the Code of Civil Procedure. It was restricted to “injunction orders” granted either without notice or with notice where leave to apply to vacate or modify was given. The first restriction is thus wholly obsolete for, as previously noted, the only “injunction order” which may be granted without notice is a temporary restraining order, which is only effective until a hearing, which is to be held “at the earliest possible time.” The second restriction of CPA § 898—that a motion to vacate or modify an order granted upon notice may only be made if the order was granted with leave to apply to vacate or modify—was added to the Code of Civil Procedure in 1879. Laws 1879, c. 542. The section previously began:

Where the injunction order was granted upon notice, the party enjoined may also apply, upon notice, to the judge who granted it, or to the court . . . [NY Code Civ Proc § 627 (1878).].

This paralleled the opening of the previous section (which survived virtually verbatim as CPA § 897):

Where the injunction order was granted without notice, the party enjoined may apply, upon the papers upon which it was granted, for an order vacating or modifying the injunction order. Such an application may be made, without notice, to the judge who granted the order, or who held the term of the court where it was granted; or to . . . [NY Code Civ Proc § 626 (1878).].

It is difficult to discover the reason for the 1879 amendment. The leave of court contemplated is apparently that granted at the time the order was granted, and would seem to represent the court’s anticipation of changed circumstances. Yet changed circumstances, anticipated or not, may dictate vacating or modifying an injunction, and so long as the motion is made upon notice, no one can be prejudiced. Therefore the requirement that a motion to vacate an order granted upon notice may only be made if leave to so move was granted, has been deleted. The first sentence of this section states the essence of CPA § 898, with the changes noted.

Add, L 1962, ch 308, eff Sept 1, 1963.