CPLR § 6201

Crescentini v Slate Hill Biomass Energy, LLC, 2014 NY Slip Op 00475 [2nd Dept. 2014]

In determining the motion for a preliminary injunction, the Supreme Court concluded that the plaintiff had not shown that she would suffer irreparable injury absent the granting of a preliminary injunction. Upon making this determination, it was error to deny the preliminary injunction motion on the condition that additional security be provided, and to continue the temporary restraining order pending approval of the additional security. Pursuant to CPLR 6301, a temporary restraining order may 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 held. Once the court determined that the plaintiff had not shown that she would suffer irreparable injury, there was no basis to continue the temporary restraining order.

We reject the Supreme Court's reasoning that, since the plaintiff might have been entitled to an order of attachment pursuant to CPLR 6201(3), it was therefore proper to direct Oliva to offer the plaintiff additional security. The plaintiff did not move for an order of attachment and, even had she done so, she would not have been entitled to one, as she did not establish that the Slate Hill defendants, with intent to defraud her or frustrate the enforcement of a judgment that might be rendered in her favor, had assigned, disposed of, encumbered, or secreted property, or removed it from the state, or were about to do any of those acts (see CPLR 6201[3]; Benedict v Browne, 289 AD2d 433). Accordingly, the possibility that the plaintiff might have sought the provisional remedy of attachment did not provide a basis for the court to direct Oliva to pay additional security to the plaintiff.

We note that the temporary restraining order was set forth in an order to show cause that provided that the temporary restraining order would only remain in effect pending the hearing and determination of the plaintiff's motion for a preliminary injunction. Since the preliminary injunction motion has been decided, and we have deleted the provision of the order appealed from extending the effective dates of the temporary restraining order, the temporary restraining order is no longer in effect. In light of our determination, we discern no basis on which to disturb the Supreme Court's determination to deny, as academic, the Slate Hill defendants' separate motion to vacate the temporary restraining order, since our determination has caused the temporary restraining order to expire.

Emphasis mine