December 16, 2025

Demystifying TROs and Preliminary Injunctions

By Laura Trachtman

Of late, a number of my clients have faced an Order to Show Cause for a temporary restraining order and a preliminary injunction. Their first question usually is, “What does all of this mean?” 

First, an OSC is just a fancy way of saying emergency motion. It’s the vehicle by which a movant (the person who makes the motion) gets their motion in front of the Judge. A regular motion is brought by Notice of Motion, which sets forth the grounds upon which the motion is based and gives the return date (the day when everyone usually goes in front of the Judge and argues the motion). In bringing an OSC, however, you have to demonstrate to the Judge that your request has some support at the very least.  

Unlike a Notice of Motion, the OSC isn’t signed by the attorney for the moving party, but by a Judge. In other words, an OSC has to surmount an initial obstacle – convincing the Judge that your request has merit. It’s the same basic paperwork, affidavits speaking to the facts and memoranda of law speaking to the law, but the attorney for the movant has to convince the Judge to sign an Order ordering the defendant to show cause and explain why an(other) Order shouldn’t be issued prohibiting the defendant from doing such-and-such. If your papers aren’t procedurally sound, if you haven’t complied with all of the prerequisites before bringing the OSC, your OSC will be denied. This process is briefly addressed in CPLR § 2214(d), which states in pertinent part, “The court in a proper case may grant an order to show cause, to be served in lieu of a notice of motion, at a time and in a manner specified therein.” (The last part indicates that the time and the manner are to be specified in the OSC.)

If you convince the Judge that your request has merit and you have satisfied the procedural prerequisites, the Judge will issue a TRO (as it’s usually abbreviated). This is an Order signed by a Judge, which temporarily restrains, or restricts, the defendant from engaging in certain activities. CPLR § 6313 makes provision for such an order, “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. Upon granting a temporary restraining order, the court shall set the hearing for the preliminary injunction at the earliest possible time.” 

Here, the movant’s burden is clear: They have to demonstrate in the papers supporting their OSC that immediate and irreparable injury, loss or damages will result absent an Order forbidding the non-moving party from engaging in a specific activity. In other words, the  purpose of the OSC is to maintain the status quo while a motion for a preliminary injunction is being argued (McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C6313:l). The TRO is basically a “pause” button while the Judge reviews the papers supporting, and opposing, the preliminary injunction and issues a decision. 

Next, let’s go over the preliminary injunction. First, it’s an injunction, meaning it enjoins, or forbids, one party from doing something. It can also force someone to continue doing something, which is a little confusing (as the word “enjoin” means to prohibit), but it makes sense that if the Courts can stop someone from doing something, the Courts should equally be able to get someone to keep doing something that the party would otherwise stop doing. 

Second, the preliminary injunction is a request for pendente lite relief; in other words, only for the pendency of the case, as opposed to a permanent injunction, which is issued at the end of the case. This is memorialized in CPLR § 6301, “A preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff’s rights respecting the subject of the action, and tending to render the judgment ineffectual, or in any action where the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff.” 

There’s a lot of case law on preliminary injunctions, but I’ll put my favorite right here: The Court of Appeals in Aetna Ins Co. v. Capasso, 75 N.Y.2d 860, 862 (1990), held that to be entitled to a preliminary injunction, “plaintiffs had to show a probability of success, danger of irreparable injury in the absence of an injunction, and a balance of the equities in their favor.” Additionally, the Second Department in Blueberries Gourmet, Inc. v. Aris Realty Corp., 255 A.D.2d 348, 349-50 (2d Dept.1998), held that “[t]o sustain this burden [of demonstrating a likelihood of success on the merits], the movant must demonstrate a clear right to relief which is “plain from the undisputed facts” (see, Family Affair Haircutters v. Detling, 110 A.D.2d 745, 488 N.Y.S.2d 204). Where the facts are in sharp dispute, a temporary injunction will not be granted (internal citations omitted).”

The TL;DR of the above is that the movant has to show that they’re likely going to win the entire case, that something really bad will happen to them if the Court doesn’t issue the preliminary injunction, and that all told, it’ll be worse for them than for the other side if the Judge doesn’t issue the preliminary injunction. Further, the moving party has to show that the facts are agreed to by everyone. This is a very heavy burden. Generally speaking, it’s a lot easier to poke holes in an application for a TRO and a preliminary injunction than to bring one successfully.  

I’ve argued five applications for a preliminary injunction in the last year – two in the Appellate Division – Second Department, and three in the Supreme Court. Luckily, my clients have been pleased with the results of my efforts so far. While I’m definitely becoming more comfortable with opposing and submitting OSCs (practice makes perfect and all), and I do enjoy the thrill of having the twin challenges of a short turnaround and high stakes, I would be grateful if 2026 could feature more motions and fewer OSCs.