FAQ’s: Deposition Do’s and Dont’s

How to Prepare for & Give A Great Deposition 

  • Understand the deposition process
  • Understand the lawyer’s objectives
  • Always tell the truth
  • The best answers, if truthful are:
    • “Yes”
    • “No”
    • “I don’t know”
    • “I don’t remember”
  • Listen to the question, pause, & think before you answer
  • Do not answer a question unless you clearly understand the question
  • If you do not understand the question, just say so!
  • If you do not know the answer, say “I don’t know”
  • If you do not remember the answer, say “I don’t remember” and then stop talking
  • Do not confuse “I don’t know” with “I don’t remember”
  • Don’t answer “Yes” or “No” to a question if the question can’t be answered accurately with “Yes” or “No”
  • Never speculate or guess
  • Answer questions based on your own personal knowledge
  • If questioned about a document, ask to review it before you answer
  • Take the time to read the document fully before you respond
  • If asked to assume a fact, make it clear it is the attorney’s assumption, not yours
  • Answer only the question asked
  • Never volunteer information
  • Do not try to restate or fix the attorney’s question
  • Do not let the attorney put words in your mouth
  • Do not think out loud
  • Do not apologize or make excuses
  • Do not offer your comments about the quality of the question
  • Do not exaggerate or overstate
  • Give the shortest possible truthful answer and then stop talking
  • Use a verbal “Yes” or “No”
  • Do not ramble or go off on tangents (see do not volunteer above)
  • If the attorney interrupts you before you finish your answer, tell him or her that you were not finished
  • Pay close attention to the questions
  • If your attorney object to the question, stop talking and listen closely
  • After your attorney objects, wait before you answer to see if the attorney is instructing you not to answer
  • If your attorney instructs you not to answer, don’t answer
  • Be calm. Never get angry.
  • Do no argue with the opposing attorney or opposing side
  • This is a serious process so no  jokes
  • Do not interrupt the question
  • Pause and think about the question before you start your answer
  • Talk slowly (makes it easier for you to articulate your thoughts and the Court reporter will love you for it)
  • Do not look at your own attorney for help
  • Correct any mistakes you made during your deposition
  • Ask for regular breaks
  • Do not use alcohol or drugs that can affect your performance
  • Dress in a way that makes you comfortable or confident.
  • Give the shortest but truthful answer
  • Watch out for questions that assume facts that are not true
  • Do not let the attorney limit your choices
  • Do not let the attorney incorrectly summarize your testimony
  • Beware of absolutes like “always” and “never”
  • Remember that nothing is “off the record”
  • Look out for the “… is that all?” question.
  • There is nothing wrong with saying you met with your lawyer before the deposition
  • Do not bring any documents to the deposition unless your lawyer tells you to do so
  • Do not take notes in the deposition. You’ll have to give that to the attorney when you’re done and you don’t want to risk disclosing confidential information.
  • Tell you lawyer your concerns before the deposition
  • Admit the obvious, even if it hurts.
  • Do not let the attorney bully you
  • Do not be evasive
  • Look out for “leading” questions
  • Do not offer to do anything after the deposition ends
  • Discuss questions you have with your lawyer at the next break
  • Be confident and strong

FAQ’s A Successful Approach to Depositions

Depositions are one of the most critical aspect of any complex litigation. It’s an opportunity to get answers, even if the answers are not always in line with your assumptions.

I look to depositions as a form of negotiations: constantly digging deeper to understand the witness his/her motivations, grievances, perceptions, and facts. I’m always advocating for my client but the best way to advocate for a client in a deposition is not to badger, annoy, or infuriate the witness. The absolute best way to conduct and manage a deposition is to think of it as a form of negotiation and that involves active listening.

A good deposition consists of two forms of questions, with an emphasis on the second form:

  1. fishing with a spear gun
  2. fishing with a net

Fishing with a spear gun refers to those careful, targeted questions. Generally this refers to questions that are “yes” or “no” until I have painted the witness into a corner.

Fishing with a net means asking broad questions, creating space and opportunity for the witness to expand on their response, to voice their grievance, to explain their concerns and the things that are most critical to their position. Fishing with a net means I’m not really asking targeted questions but just trying to dig as deep as I can into the witnesses position and state of mind. More often than not through this approach I’ll find nuggets of truth that are useful in understanding the strengths and weaknesses of the case from both sides. By asking broad questions and giving the witness time and space to respond (physically just waiting 5 -7 seconds) I also find they tend to paint themselves into a corner with a flood of facts and emotions.

That being said, when fishing with a net, I always keep the goals of the deposition in mind: prove the elements of my claim or defense AND identify weaknesses in the elements of the other side’s claims or defenses.

Usually, to prepare for a deposition I have a checklist of goals, just to keep me focused on the questions I may want to ask or address because the one danger in digging deeper/fishing with a net is you can get a little lost in the weeds or on issues that have very little bearing or relevance to the actual lawsuit. As such, the checklist of goals helps me get back on track with my questioning or assists me in knowing when to shift gears in my line of questioning.

To also prepare for a deposition, I identify correspondence or other documents (including the Complaint, the Answer and responses to Discovery Demands) that I want to walk through with the witness to confirm the accuracy of any statements or confirm that the allegations in the Complaint or Answer are still true as the witness understand them.

The take away here is, a deposition is an investigative process. I want to understand as much as possible especially if it impacts the case. Embarrassing, humiliating, or intimidating the witness is not a productive goal and it’s certainly not a professional approach. I have witnessed many attorneys forget this. It’s an expensive, unproductive waste of time. We’re all there to get to the truth and try to resolve a dispute. Getting angry, worked up, or any histrionics on any level for that matter do nothing for you. Any attorney who says otherwise is selling you garbage.

FAQs: The Preliminary Conference

Litigation in New York courts is governed by rules set forth in the New York Civil Practice Law & Rules (CPLR), “Uniform Rules”, local/judges’ rules, and case law.

The Preliminary Conference (“PC”) is the first conference in the case (hence “preliminary”) and the first time the case has deadlines that are imposed by the Court itself such as the deadlines for discovery demands to be served, the deadlines for responses to discovery demands, the deadlines for when depositions should be conducted, and the deadline for when the case should be ready for trial.

The PC sets the schedule for your lawsuit.

The timing, procedure, and other mechanics of the Preliminary Conference are codified in Section 202.12 of the Uniform Civil Rules for the Supreme Court and the County Court (codified at Title 22 of the New York Codes, Rules and Regulations, 22 NYCRR 202.12).

.Section 202.12 provides, inter alia, that the following matters to be considered at the PC include:

  1. simplification and limitation of factual and legal issues, where appropriate;
  2. establishment of a timetable for the completion of all disclosure proceedings, provided that all such procedures must be completed within the timeframes set forth in subdivision (b) of this section, unless otherwise shortened or extended by the court depending upon the circumstances of the case;
  3. Where the court deems appropriate, it may establish the method and scope of any electronic discovery;
  4. addition of other necessary parties;
  5. settlement of the action;
  6. removal to a lower court pursuant to CPLR 325, where appropriate; and
  7. any other matters that the court may deem relevant.

22 NYCRR 202.12(c).

The result of the Preliminary Conference is an Order (the Preliminary Conference Order with which the parties must comply.

The PC Order, in addition to including various discovery deadlines, will also set a “Compliance Conference”, where the parties will again meet at court and discuss what, if any discovery, remains outstanding.

The 7 Step Process for Debt Collection

Step 1: The key to all debt collection matters is sufficient and proper documentation. So, first step is making sure you have a complete file. Take a look at this post which sets forth the types of evidence you should have in your file for a breach of contract claim, unjust enrichment claim, or account stated claim.

Step 2: Send invoices and statements periodically and consistently. That means weekly or monthly based on your standard practices.

Step 3: Send a soft demand letter notifying the client/customer that there is an outstanding balance due, the number of days it is past due, that payment is due at this time, and providing them with the quickest means of paying that balance due.

Step 4: After a period of time lapses (say 30 – 60 days) you should have a demand letter sent, that is at least slightly stronger, but still professional. That letter should state the that payment is due immediately, the account is past due and that if they fail to make payment in X days, that you shall refer the account to collections.

Step 5: Refer the account to collections, preferably a law firm. Your attorney will send a demand letter, notifying the customer/client that money is due at this time and if payment is not made within X days, that the attorney is authorized to proceed to collect the debt.

Step 6: When a demand letter from a lawyer fails, I like to send a letter with a Summons and Complaint attached to it, indicating that we are serious about moving forward if payment is not received immediately. I find that a demand letter in and of itself doesn’t do that much 60% of the time.

Step 7: Commence a lawsuit. Hopefully you have a contract that contains some of the key provisions to help you collect debt and minimize exposure, such as the provisions mentioned in this post here.

Debt collection isn’t a one-size fits all but this guide is a great first step in helping you put together a proper debt collection procedure and process.

FAQ’s: Everything You Need to Know About Motions.

What is a Motion?

Motions. A motion is an application/request to the Court to do something.

For example, a motion to dismiss is asking the Court to dismiss certain causes of action because they have no legal or factual merit.

For example, a motion for summary judgment is asking the Court to render a judgment now in your favor because there are no issues of material fact.

There are 4 main types of Discovery Motions: (1) a Motion to Compel Discovery Responses (2) a Motion to Strike the Pleading for Failure to Comply with Discovery Demands (3) a Motion to Preclude the Admission of Documents at Trial and (4) a Motion for a Protective Order.

What does filing a motion cost?

The cost of drafting and preparing any motion will depend on the facts and complexity of the issues.

The filing fee for a motion is $45.

How is a motion filed?Notice of Motion vs. Order to Show Cause

A motion is filed by using either a Notice of Motion or Order to Show Cause along with supporting papers (discussed below), and paying the $45 motion filing fee.

As per www.nycourts.gov both a notice of motion and an order to show cause are used to ask the court to do something in a case. But, a motion has strict rules about the number of days it can be served before the court date (otherwise known as the “return date”). Many people find it easier to make an order to show cause because the court sets the court date and tells you how to deliver the papers to the other side.

An order to show cause is good to use in an emergency situation. It can often get you into court faster than a motion. It can ask the court for immediate help until the case is back in court, such as stopping a sale of a home, or the taking of money out of your bank account. This is called a stay or a temporary restraining order.

Filing a motion by using a Notice of Motion

Motion papers consist of a top page called a Notice of Motion, followed by an Affidavit in Support of the motion and in most cases an Attorney Affirmation in Support and/or Memorandum of Law in Support of the Motion, along with copies of any documents that the moving side thinks would help the Judge make a decision.

The party making the motion is called the movant.

The Notice of Motion tells the other side the date the motion will be heard by the court (the “Return Date”). This is sometimes called the return date, or the date the motion is returnable. This date is chosen by the movant according to the Civil Practice Laws and Rules.

The Notice of Motion must also tell the court and the other side what the movant is asking the court to do i.e. the relief being sought.

A sample Notice of Motion form for a motion for summary judgment looks like the following:



———————————————————————–X    INDEX NO. 12345/2019



-against-                                                           NOTICE OF MOTION





PLEASE TAKE NOTICE, that upon the annexed affirmation of Jeffrey Davis., the affidavit of Ronnie Rosenblat, the affidavit of Karim Harried and upon all the verified pleadings and proceedings heretofore and herein, the undersigned will move this Court, at the Court house located at 111 Martin Luther King Jr Blvd, in the City of White Plains, County of Westchester, State of New York, on the  28th day of November 2019, at 9:30 a.m. of that date or as soon thereafter as counsel can be heard, for an Order pursuant to CPLR 3212 granting summary judgment in favor of the Plaintiff on the Plaintiff’s First Cause of Action (fraudulent inducement) and the Plaintiff’s Third Cause of Action (unjust enrichment); and for such other and further relief which to this Court seems just and proper under the circumstances.

Pursuant to N.Y. C.P.L.R. 2214(b), answering affidavits, if any, are required to be served upon the undersigned at least seven days before the return date of this motion.

DATED: November 30, 2019

            Hawthorne, N.Y.

Davis & Associates



Filing a motion by using an Order to Show Cause

An Order to Show Cause consists of a top page called an Order to Show Cause (OSC), followed by an Affidavit in Support of the OSC, and in most cases an Attorney Affirmation in Support and/or Memorandum of Law in Support of the Motion, along with copies of any documents that the moving side thinks would help the Judge make a decision.

As per the nycourts.gov website: “The OSC tells the court and the other side what the movant wants the Judge to do. If the movant wants the Judge to order something right away that can’t wait until the court date, the OSC must say this too. For example, the OSC can ask the Judge to stop an eviction until the court date.” This is called a stay or temporary restraining order (“TRO”).

The OSC is given to the court for a Judge to review and sign. If the Judge signs it, the Judge picks the court date and fills it in on the OSC. The Judge also fills in how you must deliver the OSC to the other side. The Judge may cross-out or change the part that asks for help before the next court date.

What happens after a motion is filed?

When a Notice of Motion is filed, the other side has time to oppose the motion (called opposing papers) and then the movant, generally, has an opportunity to file a reply in further support of the motion.

All papers are submitted on the Return Date. When all the papers have been submitted the motion is deemed “fully submitted”.

Some judges require hard copies, some judges do not. In most cases the judges do not hear oral argument, however if they do require or want oral argument then they notify the parties in advance of such a date.

Once the motion is fully submitted, judges generally have 60 days to make a decision on the motion, however the reality is it will take however long it takes depending on the judge. In some instances a decision may be rendered quickly, in other instances you could be waiting 2 -6 months.

FAQ’s: What Happens After You Get a Favorable Decision: Getting a Judgment and Enforcing the Judgment

Let’s assume that we file a motion in court seeking a decision in your favor because:

  1. The defendant did not respond OR
  2. The defendant did respond but all discovery is complete and there are no issues of fact OR
  3. The defendant’s defenses and claims should be dismissed

Assuming we get a favorable decision on your motion (which we could wait 2-4 months for after we file the motion), then the court may want a hearing to determine your damages – called in Inquest Hearing.

Once all that has been completed you have a Decision from the Court that you have to convert into a Judgment by doing the following:

  1. File a proposed judgment plus any other exhibits the Court requires.
  2. Wait for the court to sign off on the judgment
  3. Once you have the judgment you engage in the process of locating assets, freezing bank accounts, and garnishing wages.
  4. Step 3 entails sending subpoenas and restraining notices to banks in the area, and sending a subpoena to the defendant to appear in my office for a deposition regarding his/her assets
  5. Once we’ve located assets we enforce the judgment by seizing all non-exempt assets. This may involve paying a marshal.

This is a general guide meant to broadly answer a commonly asked question about the litigation process. Contact Us to discuss your specific case and the process that may apply to your case.

FAQ’s: What if the Other Side Doesn’t Respond to My Discovery Demands?

The general rule with respect to discovery is as follows: “Parties to civil litigations are granted broad rights to disclosure of all relevant and material matters as well as documentation that might lead to the discovery of admissible proof.” Montgomery v. Taylor, 275 A.D.2d 698, 713 N.Y.S.2d 188 (2d Dep’t 2000).  

The Civil Practice Law and Rules (rules governing procedure in NY state courts) provides that there must be full disclosure of all matters that are material and necessary in the prosecution or defense of an action. See CPLR §3101(a). 

The Court of Appeals has interpreted the “material and necessary” component of CPLR 3101(a) liberally “to require disclosure upon request of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity.  

As the Courts have stated: “The test is one of usefulness and reason … to permit discovery of testimony which is sufficiently related to the issues in litigation to make the effort to obtain it in preparation for trial reasonable.” Allen v. Crowell–Collier Publ. Co., 288 N.Y.S.2d 449; see also Jones v. Beckford, 289 A.D.2d 26,27 (1st Dep’t 2001). 

Disclosure is not limited to evidence directly related to the issues in the pleadings.  Id.   The Court of Appeals’ interpretation of “material and necessary” in Allen has been understood “to mean nothing more or less than ‘relevant’ ” (Connors, Practice Commentaries, McKinney’s Cons. Laws of N.Y., Book 7B, CPLR C3101:5).  

As such, in accordance with the statute, any party may demand disclosure of evidence or information leading to evidence relevant to the case without regard to the burden of proof.  See Weber v. Ryder TRS, Inc., 854 N.Y.S.2d 480 (2d Dep’t 2008); also see Northway Engineering Inc. v. Felix Industries Inc., 567 N.Y.S.2d 634 (1991).

Now that we’ve established a party’s broad discovery rights in a litigation, what if the other side doesn’t respond? Well according to CPLR§ 3124: “if a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article, except a notice to admit under section §3123, the party seeking disclosure may move to compel compliance or a response.” 

This means that you can file a Motion to Compel the other side to respond to your discovery demands. Generally this requires an affirmation from the attorney regarding the things specifically being demanded, what the other side has failed to provide, why that information is relevant to the case, and the good faith efforts that your attorney has taken in order to resolve these discovery related issues.

If the other side continually, contumaciously, and repeatedly fails to respond to discovery demands or even court orders requiring further disclosure of documents or testimony, you have even more rights according to CPLR 3126:

“If any party, or a person who at the time a deposition is taken or an examination or inspection is made is an officer, director, member, employee or agent of a party or otherwise under a party’s control, refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them:

1. an order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order;  or

2. an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses;  or

3. an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party.

Now, a few words of caution and reality. First, discovery battles tend to be the biggest waste of time in my opinion. You can file a motion to compel (CPLR 3124) or event file a motion to strike (CPLR 3126), but more often than not Courts view these issues as a battle between two hostile parties or two whining attorneys who can’t seem to work together as adults. Second, some courts/judges will not even permit you to file a motion to compel (CPLR 3124) let alone a motion to strike (CPLR 3126) until you’ve had a conference with the Court to try to resolve the outstanding issues.

I’ve been before judges who have said on the record, that nothing pisses them off more than battles over simple discovery issues.

The important takeaway here is, work with your attorney to present all relevant information. Don’t get hung up on discovery battles. They tend to delay your case significantly. Be consistent and diligent throughout the discovery process it will help you streamline the litigation process overall.

FAQ’s: What if the Defendant Doesn’t Respond to My Lawsuit?

A lawsuit is commenced by filing and then serving a Summons and Complaint. The Defendant then has 20 days to serve an Answer (30 days if they were not personally served).

But what happens if someone doesn’t Answer the Summons and Complaint? Well, in New York the applicable statute that deals with defaults is as follows

CPLR§3215(a) states: “(a) Default and entry. When a Defendant has failed to appear, plead or proceed to trial of an action… the Plaintiff may seek a default judgment against him. If the Plaintiff’s claim is for a sum certain or for a sum which can by computation be made certain, application may be made to the clerk within one year after the default. The clerk upon submission of the requisite proof shall enter judgment for the amount demanded in the complaint or stated in the notice service pursuant to subdivision (b) of rule 305, plus costs and interest…”

So, pursuant to CPLR 3215, if the Defendant does not appear or Answer the Complaint in time, you can file a Motion for a Default Judgment. As part of that motion you have to file proof of service of the summons and complaint or a summons with the notice and provide an affidavit showing the facts of the claim, the default, and the amount due. See CPLR §3215; see also Freccia v. Carullo, 93 A.D.2d 281, 462 N.Y.S.2d 38 (2d Dep’t 1983); Levi v. Oberlander, 144 A.D.2d 546 (2d Dept. 1988).

So, this means that if you are seeking a default judgment because the Defendant did not respond in time, you will have to file proof of service of the Summons and Complaint, and you’ll need an Affidavit of Merit setting forth in detail the basis for your claim and the basis for your damages.

In addition to the above, CPLR 3215 also requires a few other things:

  1. Pursuant to CPLR §3215(g)(4) you as the Plaintiff will have to mailing an additional copy of the Summons and Complaint upon the defaulting Defendant.
  2. Pursuant to CPLR §3215(g)(3) you as the Plaintiff must also serve upon the defaulting Defendant an additional copy of the Summons and Complaint enclosed in a first class postpaid wrapper marked ”personal and confidential” and properly addressed to said defaulting Defendant.

Once you’ve filed your motion for a default judgment, the time for you to receive a decision from the Court will vary depending on the county where the court is located and the judge.

Assuming you receive a favorable decision, you will either (1) have to go to Court for an inquest hearing which is sort of a mini-trial without the defendant where the judge hears testimony and reviews exhibits supporting your specific claim for damages, or (2) you will receive a decision which grants you the specific damages you are seeking.

In order to convert this Decision into a judgment you will then, following whatever other direction the Court gives you, file a proposed judgment. Once you receive an approved signed Judgment in your favor, you can then take steps to enforce that Judgment (which is another topic of discussion altogether).

CPLR 3215 has its nuances so consulting with an attorney is absolutely highly recommended.

FAQ’s: The Litigation Process


Note: this is for educational purposes only

Commencement and Pleadings. Generally, a lawsuit is commenced by filing and serving a Summons and Complaint. The Defendant must serve an Answer within 20 days if served personally or 30 days if served by any other means.

Discovery Process. Discovery is the process of investigating and gathering documents and evidence in support of your claims or in opposition to adversary’s claims. The timeline varies greatly based on complexity, cooperation of parties and other factors. Typical discovery tools/forms include:

  • A Demand for documents
  • Combined discovery demands (i.e. demand for witnesses, insurance information, etc.)
  • Interrogatories (set of questions which must be responded to under oath)
  • Depositions (basically an interrogation in a room with a court reporter, under oath)

The length and expense of the discovery process will vary greatly from case to case depending on several factors: (1) the complexity of the case (2) extent of the documents being reviewed or demanded (3) number of material witnesses (4) whether the opposition is being responsive or cooperative to our demands (5) whether there is a dispute regarding discovery demands and/or responses to discovery demands (6) the Court where the case is brought.

If issues with discovery cannot be resolved between the parties, then one or both of the parties may file a “Discovery Motion”.

The discovery process can take months and in some cases years depending very much on the cooperation and availability of the parties, the number of witnesses, and the Court where the lawsuit is filed.

Motions. Motions are applications or requests to the Court to do something or take some action based upon a statute or rule of law. So this includes things such as Motion to Dismiss or Motion for Summary Judgment, or Motion for Injunctive Relief. The time for a Court to make a decision on a motion can take weeks or months. It varies depending on the motion, the Court, and even the Judge.

Trial. When discovery is complete the plaintiff is required to file a Note of Issue with the Court, which tells the Court that the parties are ready for trial. Once filed the Court will set a date for a Pre-Trial conference at which time the Court will set a date for trial. Trial is not something that happens immediately. Depending on the Court and the Judge it can be in a matter of months from when the Note of Issue is filed, or it can be even up to a year.

When Do You Need to Come to Court? The only time you need to appear in court is for trial or a special hearing if you are a required witness, or the Court requires you to appear. Clients often ask if they need to appear for conferences, compliance conferences, preliminary conferences. The answer is “NO”. Conferences are not trials. In most courts we aren’t even before a judge but instead dealing with procedural issues before a magistrate or referee where clients are not allowed.


Most cases never get to trial because (1) the parties settle or (2) the case gets dismissed

***Even though most cases never make it to trial, it is worth noting that Trial preparation is intensive and therefore very expensive, generally. It involves preparing exhibits, preparing witnesses, preparing questions and determining strategies based on what occurred during the discovery process.


Conferences. Courts require numerous conferences during the course of any lawsuit. The purpose of these conferences is to determine a possibility for settlement, determine if there are any issues in the discovery process, set deadlines, and extend deadlines if necessary.

Motions. A motion is an application/request to the Court to do something. As a practical matter all motions impact the litigation schedule and expense.

For example, a motion to dismiss is asking the Court to dismiss certain causes of action because they have no legal or factual merit.

For example, a motion for summary judgment is asking the Court to render a judgment now in your favor because there are no issues of material fact.

There are 4 main types of Discovery Motions: (1) a Motion to Compel Discovery Responses (2) a Motion to Strike the Pleading for Failure to Comply with Discovery Demands (3) a Motion to Preclude the Admission of Documents at Trial and (4) a Motion for a Protective Order.

The cost of any motion will depend on the facts and complexity of the issues.

How Long Will Your Lawsuit Take? Unfortunately that is impossible to predict with any real degree of certainty. It will depend on the complexity of the case, court ordered deadlines, the opposing party and their level of resistance/cooperation, your availability and responsiveness, and how busy the Court is, meaning how many other cases does the assigned Judge have to deal with.

FAQ’s: Preliminary Injunctions and Restraining Orders: CPLR 6301

Often, in the context of a partnership dispute or business divorce, clients ask me if there is a way to stop the opposition from doing something that is hurting the business or hurting the client as a co-owner of the business.

Under New York law, one can “restrain” or “enjoin” a party from engaging in certain conduct provided it meets the requisite legal standard.

When a party is seeking to permanently restrain another party it is called injunctive relief.

At the beginning of a case this is called a “preliminary injunction“.

CPLR 6301 – Preliminary Injunctions

Pursuant to CPLR §6301, the grounds for getting a preliminary injunction and temporary restraining order are as follows: “A preliminary injunction may be granted in any action where it appears that the Defendants 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 Defendants 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. 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 Defendants is restrained before the hearing can be had”.

The Three Part Test

Courts have come up with a 3-part test for determining whether they will grant a request (a “motion”) for a preliminary injunction.

In order to obtain a preliminary injunction, a moving party must demonstrate: (1) a likelihood of ultimate success on the merits; (2) irreparable injury absent the granting of the injunction; and (3) that the equities balance in the movant’s favor (Benjamin Kurzban & Son, Inc. v. Board of Education of the City of New York, 129 A.D.2d 756 [2d Dept. 1987], citing McLaughlin, Piven, Vogel, Inc. v. W.J. Noland & Company, Inc., 114 A.D.2d 165 [2d Dept. 1986]). 

Let’s take a look at this 3 part test in greater detail and specifically in the context of a partnership dispute or business divorce.

Likelihood of success on the merits:

This means that you have to get into detail about the claims you’re asserting in your lawsuit, how the facts satisfy the elements of each claim, and why you believe you will be successful on your claims.

You need only make a prima facie showing of likelihood of success on the merits, and need not demonstrate a certainty of success on a motion for a preliminary injunction. See Parkmed Co. v. Pro-Life Counselling, Inc., 91 A.D.2d 551, 552 (1st Dept. 1982); see also Terrell v. Terrell, 279 A.D.2d 301, 303 (1st Dept. 2001) (evidence showing likelihood of success on the merits need not be conclusive); Demartini v. Catham Green, Inc., 169 A.D.2d 689, 690 (1st Dept. 1991) (same).  That being said, you will want to bring as much information to the table to support your claims.

Even “the existence of a factual dispute will not bar the granting of a preliminary injunction if one is necessary to preserve the status quo and the party to be enjoined will suffer no great hardship as a result of its issuance.” Mr. Natural, Inc. v Unadulterated Food Products, Inc., 152 A.D.2d 729, 730, (2d Dep’t 1989) (a preliminary injunction may be granted where injunctive relief is deemed necessary to maintain the status quo, even if the movant’s success on the merits cannot be determined at the time that the application for a preliminary injunction is brought). Id; see also, U.S. Ice Cream Corp. v Carvel Corp., 136 A.D.2d 626, 628 (2d Dep’t 1988); Burmax Co. v B & S Indus., Inc., 135 A.D.2d 599, 600 (2d Dep’t 1987).

Irreparable Injury:

Irreparable injury is probably the most significant prong of the 3-part test for injunctive relief. It means that the injury claimed must be more than just money damages. If money will rectify the issue then you’re going to run into a tough hurdle to prove irreparable injury.

“Irreparable injury is an injury that is neither remote nor speculative, but rather actual and imminent (Khan v. State University of New York Health Science Center at Brooklyn, 271 A.D.2d 656 [2d Dept., 2000]).” Spivak ex rel. Eyeball On the Floor, Inc. v. Bertrand, Index No. 653712/2015, at *15-16 (N.Y. Sup. Ct. 2016)

For example, Courts in New York have uniformly found irreparable injury where an equity holder is being squeezed out of control or management:

  • In Alcatel Space, S.A. v. Loral Space & Communications Ltd., 154 F. Supp 2d 570, 584 (S.D.N.Y. 2001) the court found that loss of certain bargained for minority rights to participate in management of the company constituted irreparable harm), aff d by summary order, 25 Fed. Appx. 83 (2nd Cir 2002);
  • In Davis v. Rondina, 741 F. Supp 1115, 1125 (S.D.N.Y. 1990) the Court found that breach of the shareholders agreement by excluding minority shareholder from management of corporation constituted irreparable harm;
  • In Street v. Vitti, 685 F. Supp 379, 384 (S.D.N.Y. 1988) the court found that the potential infringement of the minority shareholder voice in management of the company, by the majority shareholder constituted irreparable injury;
  • In Louis Foodservice Corp. v. Konstantinos Vouviouklis, 2002 WL 31663230 (Sup. Ct., Kings Cty, 2002) the court determined that loss of control of a closely held business constitutes irreparable injury; also see Spivak ex rel. Eyeball On the Floor, Inc. v. Bertrand, Index No. 653712/2015, at *17 (N.Y. Sup. Ct. 2016).
  • In Oracle Real Estate Holdings Co. 1 v. Adrian Holdings Co. 1, LLC, 582 F Supp.2d 616, 621 (SD NY 2008), the court granted a preliminary injunction where the issue was loss of control of a company, finding irreparable harm, noting that “[plaintiff] seeks to enforce (1) a bargained-for right to corporate control (2) that is difficult or almost impossible to value, which (3) could be meaningless or substantially diminished in value by the end of the litigation in the absence of injunctive relief.”
  • In Bank of America, N.A. v. U.S. Bank National Association, 2010 WL 4243437, at *10-11 (Sup Ct NY Co. 2007) the court found irreparable harm to exist where in the absence of injunctive relief, the plaintiffs would lose their bargained-for right to control the management of property which consisted of approximately 11,000 units, 25,000 residents and 550 employees.
  • In Cantwest Global Communications Corp. v. Mirkaei Tikshoret Limited, 9 Misc. 3d 845, 804 N.Y.S.2d 549 (NY Ct. 2005), the Court held that the lost bargained-for right to participate in the management of a company constituted irreparable harm. In addition, the Court held that the (1) firing of employees (2) moving of operations (3) and changing of vendors further necessitated a finding of irreparable harm.
  • Irreparable injury may be demonstrated by the loss of customers, permanent loss of revenues and loss of good will. See for example Wisdom Import Sales Company v. Labatt Brewing Company, Ltd., 339 F.3d 101 (2d Cir 2003).
  • Irreparable harm may also be found where absent a preliminary injunction the plaintiff would in sum and substance be terminated as a member and employee of the company. See Matter of Madelone v. Whitten, 18 Misc.3d 1131(A) [Sup. Ct., Albany Cty., 2008].

In finding irreparable harm in the context of partnership/business disputes Courts have also considered the following:

  • (1) where the defendant has made it impossible for the Company to profit
  • (2) where the defendant has utterly defeated your reasonable expectations in profits
  • (3) where the defendant has made it impossible for the Company to conduct business
  • (4) where the defendant has destroyed the Company’s goodwill, and
  • (5) where the defendant’s conduct has resulted in loss/permanent loss of the Company’s customers.

What Goes Into Drafting a Motion for a Preliminary Injunction?

A motion for a preliminary injunction consist of the following:

  • An Order to Show Cause (the cover page asking for the specific relief)
  • Attorney Affirmation
  • Client Affidavit of Facts (which need to be notarized)
  • Memorandum of Law in Support (reciting the facts of the case and the law in support of the the three-pronged test discussed above)
  • A Verified Summons and Complaint (setting for the facts and the causes of action)

What is the Process for Filing a Motion for a Preliminary Injunction?

The process of filing a motion for a preliminary injunction looks generally as follows:

  • Electronically file the motion papers (proposed Order to Show Cause, Affirmation, Affidavit, Memorandum of Law, and Summons/Complaint)
  • Appear in Court to provide hard copies to the Judge so he/she can sign the proposed Order to Show Cause (if you’re seeking a temporary restraining order — “TRO” — you may need to argue the basis for doing so the day you bring the papers to the Judge for signature)
  • Await a signed and completed Order to Show Cause from the Judge which will set forth (1) the process and due date for papers to be served on the defendant, (2) the due date for opposing papers to be submitted, (3) and if the Court will hear oral argument, the date when the parties will be in court for oral argument
  • Show up in Court for oral argument
  • Either await a decision from the Court OR in some cases the Judge will issue a Decision and Order on the day of oral argument

For a detailed consultation regarding your partnership dispute, business dispute, or business divorce, contact us today!