In Gallivan v Cuomo, the Fourth Department gave pandemic litigation watchers and appellate lawyers like me a little bit of everything. It was interesting when Supreme Court issued a temporary restraining order against enforcement of Governor Cuomo’s executive order requiring restaurants across the State to close at 10 PM to slow the spread of COVID-19. It was intriguing when the Fourth Department temporarily stayed that TRO last week. And it’s downright fascinating now that the Court has issued a 19-page decision vacating the TRO in its entirety.
First let’s set the stage. As the coronavirus pandemic reached New York in March 2020, the New York Legislature expanded the Governor’s powers to issue directives designed to slow the spread of the virus, and provided that the expanded powers would sunset on April 30, 2021. Using that expanded authority, in Executive Order 202.74 issued in November 2020, Governor Cuomo imposed a 10 PM curfew on restaurants because “patrons who stay out later than 10:00 PM tend to consume more alcohol and that, in turn, makes such patrons less likely to adhere to the stringent personal conduct (such as masking and social distancing) necessary to safely congregate with others.” (Decision, at 5).
The Challenge to the Restaurant Curfew, the TRO, and the Fourth Department’s Vacatur
A coalition of restaurant owners in Erie and Monroe Counties challenged the 10 PM curfew executive order, arguing that the Legislature’s expansion of the Governor’s emergency powers under Executive Law 29-a was an unconstitutional delegation of legislative authority, and that the 10 PM curfew itself was arbitrary, violated the statute, and violated the restauranteurs’ equal protection rights. They sought a temporary restraining order from Supreme Court by order to show cause, giving the State notice that they would be presenting the proposed order including the temporary relief and an opportunity to be present to oppose it. After hearing arguments from both sides, Supreme Court signed the order to show cause with the TRO and directed that it be served on the State.
The State then moved immediately in the Fourth Department under CPLR 5704 (a) to vacate the TRO, and sought a temporary stay while its motion was being decided. The Fourth Department granted the temporary stay, and after full briefing of the State’s motion, vacated the TRO. The Court held that the plaintiffs were not likely to succeed on their claims, and thus could not satisfy their burden for a TRO. In particular, the Court held that the powers temporarily granted to the Governor to address the pandemic were not an unconstitutional delegation of legislative authority because it provided sufficient limits on the emergency powers. The executive orders must be necessarily designed to cope with the pandemic and reasonably necessary to enforce the directives. They are limited to 30-day durations, and are subject to a “unique legislative-veto procedure” where the Legislature can immediately terminate any executive order by issuing a concurrent resolution (Decision, at 14). And most importantly, the Court noted, the expanded emergency powers will sunset on April 30, 2021 absent further legislative action. As the Court put it,
There might come a day when, for reasons of short-term political expediency, the Legislature effectively amends the Constitutional tripartite plan by enacting a statute that comprehensively and permanently cedes its core lawmaking powers to the executive branch. In that event, of course, the judiciary would be duty-bound to intervene and restore the constitutional order. But this, most assuredly, is not that day, and the March 2020 amendment to Executive Law § 29-a is, just as assuredly, not that statute.
(Decision, at 15-16)
The remainder of the plaintiffs’ claims were moot, the Court held, because Executive Order 202.94, issued after the TRO was granted, changed the curfew to 11 PM. Because the plaintiffs’ claims were based solely on the 10 PM curfew, the Court held that, although the claims could be amended at Supreme Court to challenge the new restrictions, the current versions of the claims no longer presented a live controversy to decide. And so, the TRO was vacated, and the 11 PM curfew remains in effect.
A TRO is an Order Granted Without Notice Under CPLR 5704 (a)
Beyond the Court’s decision on the merits of the plaintiffs’ claims, the case is noteworthy for two other reasons. First, written motion decisions at the Appellate Division that include the Court’s reasoning are rare. Usually, the courts issue one or two line motion decisions only stating what relief is being granted or denied, without any reasoning for the decision at all. Second, this 19-page decision from the Fourth Department is very helpful to understand what is permitted under CPLR 5704 (a), a little understood area of appellate practice in New York.
CPLR 5704 (a) provides an avenue for quick relief at the Appellate Division when a TRO or other order is entered without notice against your client at Supreme Court. It provides, “[t]he 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.” What’s most often misunderstood, however, is what exactly is an “order granted without notice.” A temporary restraining order is rarely entered without notice to the other side and the parties all arguing before the Supreme Court. How is that not sufficient notice? In Gallivan, the Fourth Department (technically, a single Justice of the Fourth Department) explained.
When the State moved at the Appellate Division to vacate the TRO against enforcement of the curfew, the Plaintiffs argued that CPLR 5704 (a) didn’t apply because the State was given notice of the order to show cause seeking the TRO before the Judge signed it, and appeared to argue in opposition. But that’s a mistaken view of what “without notice” under CPLR 5704 actually references, Justice NeMoyer held. “Notice” is a technical legal term under the CPLR, and relates to how motions are made under CPLR article 22. Justice NeMoyer explained, the condition precedent to a CPLR 5704 (a) motion—an “order granted without notice”—only exists when a “written judicial determination” is issued “‘not predicated upon a motion made on notice'” (Decision, at 8, quoting Matter of Gliklad v Deripaska, 185 AD3d 512, 512 [1st Dept 2020]).
When an order to show cause is presented to bring on a motion, the motion isn’t actually made “on notice” until the order is signed and the signed order is served with the listed supporting papers on the other side. And when that order to show cause contains a TRO, it is necessarily granted “without notice” within the meaning of CPLR 5704 (a) because there was no motion on notice made before the order to show cause was signed. So, even if you’re given notice of a temporary restraining order application, as required under section 202.7(f) of the Uniform Trial Court Rules, and show up to argue that the Judge should strike out the TRO from the order to show cause before signing it, the entry of the TRO is still technically “without notice” and you can run immediately to the Appellate Division to have the TRO vacated under CPLR 5704 (a). Can’t say I haven’t had to do that once or twice.
Justice NeMoyer’s decision in Gallivan is a prime example for why more New York appellate courts should use their motion orders to explain interesting and complex jurisdictional and other issues that arise largely only in the context of appellate motions. The explanations could be short and to the point, but New York appellate practice would be better for it.
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