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When the Judge Declines to Sign; CPLR 5704 can Save the Day

Posted by David A. Arpino | Jun 29, 2020 | 1 Comment

CPLR 5704 - How to Seek Review When A Judge or Justice Refuses to Sign an Order to Show Cause

CPLR 5704(a) gives Appellate courts the authority to review ex parte orders of a Justice of the Supreme Court, a Judge of a Family Court or Court of Claims, or a Surrogate.

“Ex Parte” Latin “for one party,” refers to motions, hearings or orders granted on the request of and for the benefit of one party only. Ex parte matters are usually temporary orders (like a restraining order or temporary custody) pending a formal hearing or an emergency request for a continuance.  

If both parties appeared before or were heard by the Justice, Judge, or Surrogate, the order is not ex parte and CPLR 5704(a) review is not appropriate. 

A panel of Justices is required to grant relief that a trial court declined to grant. For example, if a Supreme Court Justice refuses to sign an Order to Show Cause seeking to vacate a default judgment - the application for review under CPLR 5704(a) is made to a full panel at the Appellate Division. 

The Rule: 

 CPLR § 5704. Review of ex parte orders.  

  1. By appellate division. The appellate division or a justice thereof may vacate or modify any order granted without notice to the adverse party by any court or a judge thereof from which an appeal would lie to such appellate division; and the appellate division may grant any order or provisional remedy applied for without notice to the adverse party and refused by any court or a judge thereof from which an appeal would lie to such appellate division.  

Therefore, an application to the Appellate Division under CPLR 5704 is the remedy when a judge or justice will not sign an order to show cause. The powers offered by CPLR 5704 exist only in respect to motions that are permitted to be made without notice to the other side (for example: motions for interim relief or to vacate an order or judgment).

This is a little known provision of the CPLR that is not often used by litigants. When a judge refuses to sign an OSC, that inaction cannot be appealed. (see Matter of Mele v Rockland County Bd. of Elections, 108 AD3d 633 [2d Dept 2013]). It has been our experience that a litigant will move by notice of motion after an OSC is not signed. This is technically not proper, and an attentive adversary will point out to the court that the proper procedure is to seek review under CPLR 5704 and the motion could, and probably should, be denied.

If a litigant chooses to go that route too, it would be more time consuming and expensive than seeking review under CPLR 5704.

The Appellate Division in Brooklyn can issue an Order on these applications in a matter of days. We recently sought review of a Justice's denial to sign an OSC and the Appellate Division issued an order within a day. That order can be found by here:

CPLR 5740(a) Order From Appellate Division.pdf
Order of the Appellate Division.

This was another tactical win for the firm's client in State Court. If you are in the rare need of seeking assistance under CPLR 5704(a) or (b) please do not hesitate to contact us


About the Author

David A. Arpino

The Firm's Director of Marketing, Business Development, & Legal Operations.


Fasih Din Reply

Posted Jul 30, 2021 at 16:47:31

Hi: Read your article on CPLR 5704(a). Need help to seek review in second department in relation to our Emergency Order to Show Cause that the Judge didn’t sign. We challenged a TRO and also asked for one in our own Order to Show Cause. Please give me a call at (646)413-0360. Thank you

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Arnold A. Arpino & Associates, P.C., is a full service law firm that represents individuals and businesses in a variety of different practice areas. Our firm regularly appears in the Courts throughout Long Island, New York City, and the Hudson Valley.