D'Arrigo Bros. Co. of New York, Inc. v. Abdallah Holdings Inc.

Background

D’Arrigo Bros. Co. of New York, Inc. filed an ex parte motion for a temporary restraining order. An ex parte request asks the court to act before the opposing parties receive notice and an opportunity to respond. The motion concerned defendants’ payment problems. Plaintiff cited issues it had known about since the spring, evidence of a lack of liquidity, and defendants’ failure to respond for weeks.

Court’s analysis

The court stated that the materials did not show why immediate ex parte relief was warranted. It found no additional recent change in circumstances demonstrating a threat of asset dissipation so urgent that defendants could not receive notice and an opportunity to respond, even on an expedited schedule. The court also noted that the proposed order went beyond preserving the status quo because it would require defendants to provide recent financial records, tax returns, bank statements, and related documents. The court observed that plaintiff might ultimately be entitled to that relief, but ex parte motions are disfavored.

Ruling and next steps

The court ordered plaintiff to serve defendants by September 29, 2023, with the complaint, the papers concerning the temporary restraining order and preliminary injunction, and the order itself. It ordered defendants to appear and respond by October 3, 2023, and ordered both sides to appear at a telephone hearing on October 4, 2023, at 10:00 a.m. The court stated that plaintiff could renew its request for ex parte relief if significant circumstances arising after the motion was filed provided additional grounds. The order does not expressly use the word “denied” for the motion; it instead required notice, a response, and a hearing.