Given what's at stake when a party seeks emergent injunctive relief (or, in legalase, a "TRO"), the question that begs to be asked is this:

What remedies - if any - are available to a party if the trial court rules against them?

As set forth below, there is - at least at first blush - a significant distinction between State and Federal law on this issue.

Why a Trial Court's Interim, or Non-Final, Orders Are Often Not Appealable in Federal Court

But first, by way of background, it is useful, if not critical to understand that not every trial court ruling is appealable; to the contrary, many orders that are rendered over the lifetime of a case are not inherently appealable as of right. One such broad category of rulings are called interlocutory orders, which are generally defined as non-final orders that are rendered during the course of a lawsuit.

The reason why such orders are, generally speaking, not appealable, is fairly straightforward: since it is entirely possible that subsequent developments during the case may well render that earlier decision moot, there is no compelling rationale to hold up the procession of the litigation before the trial court pending the outcome of an appeal.

But as we all know, just about every rule has its exceptions, and this situation is no different.

New York State and Federal Law Regarding the Appealability of Orders Pertaining to TROs

The Federal Rules Regarding Appealability

To that end, the Federal Rules set forth the general principle that final orders are appealable, stating:

The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, except where a direct review may be had in the Supreme Court. The jurisdiction of the United States Court of Appeals for the Federal Circuit shall be limited to the jurisdiction described in sections 1292(c) and (d) and 1295 of this title.

28 U.S.C.A. § 1291 (West).

The following section, 28 U.S.C.A. § 1292, sets forth the circumstances under which an appeal may be had with respect to an interlocutory order - and as applicable to this topic, pertaining to the issuance (or denial) of injuctive relief, stating:

(a) Except as provided in subsections (c) and (d) of this section, the courts of appeals shall have jurisdiction of appeals from:

(1) Interlocutory orders of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court;


(b) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.

Critically, applying the foregoing statutes, Federal courts across the country have held that the allowance of an appeal under 28 U.S.C.A. § 1292(a)(1) does not cover the issuance or denial of temporary injunctive relief; rather, it only pertains to orders that are addressing more permanent nature, such as a preliminary or permanent injunction. See, e.g., Northeast Ohio Coalition for Homeless and Service Employees Intern. Union, Local 1199 v. Blackwell, C.A.6 (Ohio) 2006, 467 F.3d 999; Belo Broadcasting Corp. v. Clark, C.A.5 (Tex.) 1981, 654 F.2d 423; U.S. v. Spectro Foods Corp., C.A.3 (N.J.) 1976, 544 F.2d 1175; Hoh v. Pepsico, Inc., C.A.2 (N.Y.) 1974, 491 F.2d 556.

New York State's Rules Regarding Appealability of Trial Court Rulings

Article 57 of New York State's Civil Practice Law and Rules (which is colloquially known as the "CPLR") seems to grant far wider latitude to appeal a trial court's orders, stating, in pertinent part, as follows:

N.Y. C.P.L.R. 5701

(a) Appeals as of right. An appeal may be taken to the appellate division as of right in an action, originating in the supreme court or a county court:

1. from any final or interlocutory judgment except one entered subsequent to an order of the appellate division which disposes of all the issues in the action; or

2. from an order not specified in subdivision (b), where the motion it decided was made upon notice and it:

(i) grants, refuses, continues or modifies a provisional remedy; or


(iv) involves some part of the merits; or

(v) affects a substantial right; or

(vi) in effect determines the action and prevents a judgment from which an appeal might be taken; or

At first blush - and as (mistakenly) suggested in some practice commentaries on the subject, it would seem that New York State would inherently allow appeals of orders granting or denying a TRO - as it should fall within the ambit of CPLR 5701(a)(1) or a number of subsections of (a)(2), as it theoretically involves the merits and/or affects a substantial right.

But that is wrong.

New York State's courts have stated unequivocally that 

[W]e would note that a temporary restraining order contained in an order to show cause ... is not appealable.

Crane v. New York Council 66 of Am. Fed'n of State, Cnty. & Mun. Emps., 101 A.D.2d 682, 682, 475 N.Y.S.2d 165, 167 (1984).

Jonathan Cooper
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