Preliminary Injunctions in New
York Commercial Cases.

What a Preliminary Injunction Is

A preliminary injunction is a court order, issued early in a case, that directs a party to do something or to stop doing something while the litigation is pending. Its purpose is to preserve the status quo so that a later judgment is not rendered meaningless. The authority comes from CPLR 6301, which allows a preliminary injunction where the defendant threatens to do an act that would produce injury, or where the defendant is doing or threatening an act that would violate the plaintiff's rights and tend to render a judgment ineffectual. A preliminary injunction is a provisional remedy, not a final ruling on the merits. For the broader litigation context, see our Commercial Division Playbook.

The Three-Part Test

To obtain a preliminary injunction in New York, the moving party must establish three things: a likelihood of success on the merits, the prospect of irreparable injury if the injunction is not granted, and a balance of the equities in the moving party's favor. The Court of Appeals stated the test in Nobu Next Door, LLC v. Fine Arts Housing, Inc., 4 N.Y.3d 839 (2005), and in Aetna Insurance Co. v. Capasso, 75 N.Y.2d 860 (1990). All three elements must be shown. A strong case on one factor does not excuse a failure on another, and the moving party carries the burden on each.

Likelihood of Success on the Merits

The first element asks whether the moving party has shown a likelihood, not a certainty, of winning the case. New York courts describe a preliminary injunction as a drastic remedy that should be granted only where the moving party demonstrates a clear right to relief. The Court of Appeals emphasized that standard in Doe v. Axelrod, 73 N.Y.2d 748 (1988), and in W.T. Grant Co. v. Srogi, 52 N.Y.2d 496 (1981). The moving party does not have to prove its case conclusively at this stage, but it must make a persuasive showing on the law and the facts. Where the key facts are sharply disputed, a court may decline to find a likelihood of success.

Irreparable Harm

The second element is often the hardest in a commercial case. Irreparable harm means injury that cannot be adequately compensated by money damages. If the loss can be measured and paid for with a later damages award, New York courts generally hold that there is no irreparable harm and no basis for an injunction. Harm to goodwill, loss of a unique business opportunity, disclosure of confidential information, or the loss of a one-of-a-kind asset can qualify. A purely economic loss that can be calculated usually does not. The moving party has to show that the harm is imminent and not remote or speculative.

Balance of the Equities

The third element weighs the harm the injunction would prevent against the harm it would cause. The court asks whether the irreparable injury to the moving party, absent an injunction, is more burdensome than the harm the injunction would inflict on the opposing party. If granting the injunction would do more damage than it prevents, the balance tips against it. This is a practical, fact-driven inquiry, and it is where the specific commercial circumstances of the dispute carry the most weight.

Temporary Restraining Orders

When a party needs relief immediately, before the court can hear a full injunction motion, it can seek a temporary restraining order under CPLR 6313. A temporary restraining order can be granted where immediate and irreparable injury will result before a hearing can be held. It is short-lived, bridging the gap until the court decides the preliminary injunction motion. Courts hold applicants to a high standard for the extraordinary step of restraining a party before the other side is fully heard, and the papers must show genuine urgency.

The Undertaking

A preliminary injunction in New York is not free to obtain. CPLR 6312(b) requires the moving party to post an undertaking, a form of security, in an amount fixed by the court. The undertaking exists to compensate the enjoined party for damages and costs it may sustain if the court later decides that the injunction should not have been granted. The requirement is mandatory, and the amount can be substantial in a commercial case. A moving party should be prepared to post meaningful security as the price of the relief.

Getting the Motion Right

A preliminary injunction motion is won or lost on the papers. The moving party has to marshal admissible evidence on all three elements, show real urgency, and be ready to post an undertaking, all on a compressed schedule. The party opposing the injunction, in turn, looks for the weak element, most often irreparable harm, and drives at it. Because the remedy is drastic and the timeline is short, preliminary injunction practice rewards preparation. The Law Office of Frederic R. Abramson handles provisional remedy motions in commercial disputes in the New York Supreme Court.

Frequently Asked Questions

What is a preliminary injunction in New York?

A preliminary injunction is a court order issued early in a lawsuit that directs a party to do or to stop doing something while the case is pending, in order to preserve the status quo. The authority comes from CPLR 6301, which permits an injunction where a party threatens conduct that would injure the plaintiff or would tend to render a judgment ineffectual. It is a provisional remedy, not a final decision on the merits.

What do I have to prove to get a preliminary injunction?

New York applies a three-part test. The moving party must show a likelihood of success on the merits, the prospect of irreparable injury absent the injunction, and a balance of the equities in its favor. The Court of Appeals stated the standard in Nobu Next Door, LLC v. Fine Arts Housing, Inc., 4 N.Y.3d 839 (2005), and Aetna Insurance Co. v. Capasso, 75 N.Y.2d 860 (1990). All three elements must be established.

What counts as irreparable harm?

Irreparable harm is injury that money damages cannot adequately fix. Harm to goodwill, loss of a unique opportunity or one-of-a-kind asset, and disclosure of confidential information can qualify. A purely economic loss that can be calculated and paid through a later damages award generally does not, because in that situation the law considers money an adequate remedy. The harm must also be imminent rather than speculative.

What is the difference between a TRO and a preliminary injunction?

A temporary restraining order under CPLR 6313 is emergency, short-term relief granted when immediate and irreparable injury would occur before the court can hear a full motion. A preliminary injunction is decided after the opposing party has been heard and lasts through the pendency of the case. The temporary restraining order bridges the gap until the preliminary injunction motion is resolved.

Do I have to post money to get a preliminary injunction?

Yes. CPLR 6312(b) requires the moving party to post an undertaking in an amount the court fixes. The undertaking secures the enjoined party against damages and costs if the court later determines the injunction should not have issued. The requirement is mandatory, and in a commercial case the amount can be significant.

Why do courts call a preliminary injunction a drastic remedy?

Because it grants relief before the case is decided, based on a preliminary record. New York courts, in decisions such as Doe v. Axelrod, 73 N.Y.2d 748 (1988), require the moving party to demonstrate a clear right to relief and hold that a preliminary injunction should not be granted where the material facts are in sharp dispute. The drastic-remedy label reflects the caution courts apply before restraining a party in advance of judgment.

Talk to a Commercial Litigation Lawyer in New York

The Law Office of Frederic R. Abramson handles preliminary injunctions, temporary restraining orders, and other provisional remedies in commercial disputes in the New York Supreme Court, across the five boroughs, Nassau, Suffolk, and Orange counties. More than 20 years of daily courtroom experience. The Lawyer's Lawyer.

Related: Commercial Division Playbook  ·  Summary Judgment in New York Commercial Litigation  ·  What to Expect in Commercial Discovery  ·  How Long Does Commercial Litigation Take in New York  ·  What Is the New York Commercial Division

Attorney Advertising. Prior results do not guarantee a similar outcome. The information on this page is general and is not legal advice. Consult an attorney about the specific facts of your matter. Law Office of Frederic R. Abramson, 160 Broadway, Suite 500, New York, NY 10038. 212-233-0666.