§ 6312 — Motion papers; undertaking; issues of fact

New York § 6312

• Jurisdiction: New York
• Law CVP: Civil Practice Law & Rules
• Art. 63: Injunction

Text

Rule 6312. Motion papers; undertaking; issues of fact. (a) Affidavit;\nother evidence. On a motion for a preliminary injunction the plaintiff\nshall show, by affidavit and such other evidence as may be submitted,\nthat there is a cause of action, and either that the defendant threatens\nor is about to do, or is doing or procuring or suffering to be done, an\nact in violation of the plaintiff's rights respecting the subject of the\naction and tending to render the judgment ineffectual; or that the\nplaintiff has demanded and would be entitled to a judgment restraining\nthe defendant from the commission or continuance of an act, which, if\ncommitted or continued during the pendency of the action, would produce\ninjury to the plaintiff.\n (b) Undertaking. Except as provided in section 2512 and in actions\nbrought under section two hundred sixty-five-a of the real property law,\nprior to the granting of a preliminary injunction, the plaintiff shall\ngive an undertaking in an amount to be fixed by the court, that the\nplaintiff, if it is finally determined that he or she was not entitled\nto an injunction, will pay to the defendant all damages and costs which\nmay be sustained by reason of the injunction, including:\n 1. if the injunction is to stay proceedings in another action, on any\nground other than that a report, verdict or decision was obtained by\nactual fraud, all damages and costs which may be, or which have been,\nawarded in the other action to the defendant as well as all damages and\ncosts which may be awarded him or her in the action in which the\ninjunction was granted; or,\n 2. if the injunction is to stay proceedings in an action to recover\nreal property, or for dower, on any ground other than that a verdict,\nreport or decision was obtained by actual fraud, all damages and costs\nwhich may be, or which have been, awarded to the defendant in the action\nin which the injunction was granted, including the reasonable rents and\nprofits of, and any wastes committed upon, the real property which is\nsought to be recovered or which is the subject of the action for dower,\nafter the granting of the injunction; or,\n 3. if the injunction is to stay proceedings upon a judgment for a sum\nof money on any ground other than that the judgment was obtained by\nactual fraud, the full amount of the judgment as well as all damages and\ncosts which may be awarded to the defendant in the action in which the\ninjunction was granted.\n (c) Issues of fact. Provided that the elements required for the\nissuance of a preliminary injunction are demonstrated in the plaintiff's\npapers, the presentation by the defendant of evidence sufficient to\nraise an issue of fact as to any of such elements shall not in itself be\ngrounds for denial of the motion. In such event the court shall make a\ndetermination by hearing or otherwise whether each of the elements\nrequired for issuance of a preliminary injunction exists.\n