Bronx Parent Housing Network, Inc., Plaintiff(s), v. NY LLC CAPITAL ONE TD BANK (2022)

The following papers numbered 1 to 1, Read on this ex parte motion filed on noticed on 11/7/22.

PAPERS NUMBERED

Notice of Motion - Order to Show Cause - Exhibits and Affidavits Annexed1

Answering Affidavit and Exhibits

Replying Affidavit and Exhibits

Notice of Cross-Motion - Affidavits and Exhibits

Pleadings - Exhibit

Stipulation(s) - Referee's Report - Minutes

Filed Papers-Order of Reference

Memorandum of Law

The Court declines to sign plaintiff's Order to Show Cause (OSC) seeking a "temporary restraining order and a preliminary injunction" (NY St Cts Elec Filing [NYSCEF] Doc No. 18 at 1). Significantly, plaintiff impermissibly seeks a preliminary injunction without the concomitant initiation of a plenary action. To be sure, there is no evidence on NYSCEF that plaintiff filed a summons  ¹ (or any other pleading), such that it initiated an action. Moreover, absent a request for a preliminary injunction, a temporary restraining order (TRO) cannot be granted.

A TRO may only be "granted pending a hearing for a preliminary injunction where it appears that immediate and irreparable injury, loss or damage will result unless the defendant is restrained before the hearing can be had" (CPLR § 6301; see CPLR § 6313[a] ["If, on a motion for a preliminary injunction, the plaintiff shall show that immediate and irreparable injury, loss or damages will result unless the defendant is restrained before a hearing can be had, a temporary restraining order may be granted without notice."]; People v Asiatic Petroleum Corp., 45 AD2d 835, 836 [1st Dept 1974] ["CPLR 6301provides for a temporary restraining order Pending a hearing for a preliminary injunction but no such provision is made Following the hearing.]). Moreover, "a preliminary injunction may be granted only upon notice to the defendant . . .[and] [n]otice of the motion may be served with the summons or at any time thereafter and prior to judgment." (CPLR § 6311[1] [emphasis added]). Thus, absent the existence of, at the very least, a summons and/or petition initiating an action, a court cannot grant a preliminary injunction (Jou-Jou Designs, Inc. v Intl. Ladies' Garment Workers' Union, Local 23-25, 94 AD2d 395, 400 [1st Dept 1983], affd, 60 NY2d 1011 [1983] ["a preliminary injunction is only a provisional remedy, there can be no doubt that the granting of the motion to dismiss the complaint would serve to dissolve the injunction at the same time."]). Stated differently, "unless there is an underlying action which confers statutory authority on the court to grant a preliminary injunction, the court has no jurisdiction to award such relief" (Matter of Hart Is. Comm. v Koch, 150 AD2d 269 [1st Dept 1989]; Caruso v Ward, 146 AD2d 486, 487 [1st Dept 1989]). Absent a request for a preliminary injunction, and of course, jurisdiction to entertain and grant the same, any request for a TRO must be denied.

12/7/2022

FIDEL E. GOMEZ, AJSC

FOOTNOTES

1.   To the extent that document #1 on NYSCEF is denominated as a petition, a review of the document evinces that it is instead an "Affirmation in Support of Order to Show Cause for Emergency Relief."

Fidel E. Gomez, J.