As noted in our blog article on the subject, "Can you appeal a court's granting - or denying - a TRO?," the general rule is that such orders, standing alone, are generally not appealable in either Federal or State court (at least not in New York).

But that doesn't inherently mean that a party who feels aggrieved by such a trial court order is left without any recourse, no matter how heavily that order comes down; depending on a number of circumstances, that party may be able to get that application reviewed by an appellate court.

Some Ways an Aggrieved Party Can Have the TRO Reviewed by an Appellate Court

  • When a "TRO" is temporary in name only. The first, and simplest, way is if you're in Federal court, and the temporary restraining order extends beyond the 14 days allowed under FRCP 65, absent good cause. As a corollary to that principle, if, as a practical matter, the TRO will have the effect of a preliminary injunction rather than just a temporary restraining order, the courts have long and consistently held that the nomenclature of the order as a "TRO" rather than a preliminary injunction will not control, and the order will be deemed appealable.
  • Seeking Permission to Appeal from the Trial or Appellate Court. There are procedural mechanisms in both Federal and State practice whereby an aggrieved party can seek permission for leave to appeal a trial court's order when the rules don't allow for an appeal of that order as a matter of right. In most cases, the judge who just issued an order against your interests won't be terribly sympathetic to fostering an appeal of the order - unless, that is, they specifically state they're granting leave to do so in the initial TRO. Therefore, your best bet would be seeking leave directly from the appellate court.
  • A Subsequent Order Granting or Denying a Motion Seeking to Modify or Cancel the TRO May be Appealable. There are a number of reported cases holding that such orders are, in fact, appealable, which provides a backdoor way to appeal the initial order granting or denying the TRO.


Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer