By Thomas Przybylowski, Litigation Attorney (New York & New Jersey)
At a Glance
- A TRO and a preliminary injunction are emergency court orders that restrain a party’s conduct before a case reaches trial.
- The federal standard, from Winter v. Natural Resources Defense Council, requires a likelihood of success, a likelihood of irreparable harm, a favorable balance of equities, and service of the public interest.
- Irreparable harm — not money damages — is usually the deciding factor.
- New York (CPLR Article 63) and New Jersey (Crowe v. De Gioia) apply their own versions of this test.
- Thomas Przybylowski is a New York and New Jersey litigation attorney who handles emergency motion practice in commercial disputes.
Most litigation moves at the pace of the calendar. Some disputes cannot wait that long.
When a departing partner is about to drain a company account, a former employee is walking out the door with trade secrets, or a co-owner is locking the other side out of the business, the harm happens in days, not in the years it takes a case to reach trial. In those situations, the temporary restraining order and the preliminary injunction are the tools that matter, and they are among the most demanding forms of relief in civil litigation. Having handled emergency motion practice in commercial disputes, I have seen these motions reshape a case in the first week, and I have seen them fail because the moving party treated them like an ordinary brief.
Here is how this relief actually works, and where these motions tend to be won or lost.
The Standard Is High Because the Remedy Is Extraordinary
A preliminary injunction restrains a party’s conduct for the duration of the litigation, before that party has had a full chance to defend itself. Courts treat it as an extraordinary remedy that is never granted as of right, and the burden reflects that.
In federal court, the governing test comes from Winter v. Natural Resources Defense Council, which requires the moving party to show a likelihood of success on the merits, a likelihood of irreparable harm without relief, that the balance of equities tips in its favor, and that an injunction serves the public interest. Winter matters for a reason that trips up a lot of practitioners: it displaced the older approach under which a mere possibility of irreparable harm could suffice. After Winter, harm must be likely, not merely possible, and all four factors are requirements rather than points on a sliding scale. The Supreme Court reinforced the uniformity of this standard as recently as 2024 in Starbucks Corp. v. McKinney, rejecting a more lenient two-factor test that some courts had applied. When you move for this relief, you are asking a court to exercise one of the most cautious powers it has, and the framing of the motion needs to respect that.
Irreparable Harm Is Where Most Motions Live or Die
If there is one element that decides these motions, it is irreparable harm. The concept is simple in theory: if the court can make you whole with a damages award at the end of the case, the harm is reparable and emergency relief is unnecessary.
The application is where parties stumble. Courts are openly skeptical of conclusory declarations that assert harm without proving it, and a boilerplate statement that an injury would be serious is not enough. What courts credit is specific evidence of harm that money cannot fix: the loss of customer goodwill, the destruction of a confidential business relationship, the disclosure of a trade secret whose value evaporates once it is public. Easily calculated monetary losses, by contrast, almost never qualify. The other recurring killer is delay. A party that waits weeks to seek emergency relief undermines its own claim of urgency, because if the harm were truly irreparable and imminent, the party would have moved immediately. I treat the irreparable-harm showing as the center of gravity of any injunction motion, and I build the record around it before anything else.
A TRO and a Preliminary Injunction Are Not the Same Motion
These two forms of relief get discussed together, but they operate differently, and understanding the distinction is essential to using them well. A temporary restraining order is the more immediate of the two and is meant to preserve the status quo just long enough for the court to hold a real hearing.
Under Federal Rule of Civil Procedure 65, a TRO can be issued without notice to the other side, but only on a strict showing: specific facts in an affidavit or a verified complaint must clearly demonstrate that immediate and irreparable injury will occur before the adverse party can be heard. A federal TRO issued without notice is tightly time-limited, lasting up to fourteen days with one extension for good cause, at which point the fight moves to the preliminary injunction stage, which requires notice and a hearing and produces an order that lasts through the litigation. There is also a cost of admission that surprises some clients: Rule 65(c) generally requires the moving party to post security to cover the potential damage to the restrained party if the injunction turns out to be wrongful. Knowing which form of relief fits the emergency, and what each one demands, is part of moving effectively.
New York and New Jersey Add Their Own Wrinkles
Because much of my practice sits in New York and New Jersey, the state-court standards matter as much as the federal one, and they are not identical to Winter or to each other. The differences are subtle but they affect how a motion should be framed. (For more on how early case strategy plays out in this jurisdiction more broadly, see Commercial Litigation in New York: Common Claims and Early Case Strategy).
In New York, a party seeking a preliminary injunction under CPLR Article 63 must establish a likelihood of success on the merits, irreparable injury absent relief, and a balance of the equities in its favor. New York folds the public-interest consideration into the balance of equities rather than treating it as a separate element, and CPLR 6301 governs when a TRO can issue. New Jersey follows the framework from Crowe v. De Gioia, 90 N.J. 126 (1982), which asks whether relief is necessary to prevent irreparable harm, whether the underlying legal right is settled, whether the applicant has shown a reasonable probability of success on the merits, and how the relative hardships balance. One practical difference worth flagging: while Rule 65(c) makes security essentially mandatory in federal court, New Jersey state practice imposes no comparable bond requirement, which can affect the calculus of where and how to bring an emergency application. These are the kinds of distinctions that do not show up in a general overview but make a real difference in execution.
Lead With the Emergency, Not the Merits
The most common strategic error I see is treating an injunction motion as a preview of the trial brief. A forty-page disquisition on the underlying contract dispute, with a few paragraphs on irreparable harm tacked on at the end, will lose.
Judges reading these motions want to know why you need relief now, what specific harm occurs without it, and why money cannot fix it. The merits analysis should be tight and targeted, and the irreparable-harm evidence should be front and center. That means the work happens before you file: identifying the witnesses who can establish the harm, securing their declarations, considering whether a verified complaint can carry the factual showing, and anticipating the defenses the other side will raise on each element. Emergency relief rewards preparation under pressure, and the party that has done that work before the clock starts almost always has the advantage.
The Bottom Line
Temporary restraining orders and preliminary injunctions are powerful, but they are difficult to obtain, and for good reason. They turn on a high four-factor standard, they usually rise or fall on a concrete showing of irreparable harm, and they vary in meaningful ways between federal court and the state courts of New York and New Jersey. The businesses that succeed in these moments are the ones that recognize the emergency early and bring the right motion, supported by the right record, before the harm becomes permanent.
Frequently Asked Questions
What is the difference between a TRO and a preliminary injunction?
A temporary restraining order (TRO) is short-term emergency relief, sometimes granted without notice to the other side, that lasts only until the court can hold a hearing on a preliminary injunction motion (up to fourteen days in federal court, with one extension for good cause). A preliminary injunction follows notice and a hearing and remains in effect for the rest of the litigation.
What is the four-factor test for a preliminary injunction?
Under Winter v. Natural Resources Defense Council, a party seeking a preliminary injunction in federal court must show a likelihood of success on the merits, a likelihood of irreparable harm, that the balance of equities favors an injunction, and that an injunction serves the public interest. The Supreme Court confirmed this same four-factor test applies uniformly in Starbucks Corp. v. McKinney (2024).
Why does irreparable harm matter so much?
Courts will not grant emergency relief if money damages at the end of the case could fix the harm. Most injunction motions are won or lost on whether the moving party can show specific, non-monetary harm — such as loss of goodwill or disclosure of a trade secret — rather than conclusory assertions.
Do New York and New Jersey use the same standard as federal court?
No. New York applies CPLR Article 63, folding the public-interest factor into the balance of equities. New Jersey follows Crowe v. De Gioia, which also asks whether the underlying legal right is settled. Federal courts require a bond under Rule 65(c); New Jersey state courts generally do not.
Related Reading
For more from Thomas Przybylowski on commercial litigation strategy, see Commercial Litigation in New York: Common Claims and Early Case Strategy and The Delaware Exodus: Where Should Your Company Incorporate?, which looks at the corporate-structure decisions that often sit upstream of the kind of ownership and governance disputes discussed above.
About the author
Thomas Przybylowski is a litigation attorney with extensive experience leading complex commercial litigation, business disputes, and high-stakes matters. He previously practiced at Pomerantz LLP and Schulte Roth & Zabel LLP and was named a Super Lawyers Rising Star in 2020 and 2021. He is admitted to practice in New York and New Jersey. Thomas Przybylowski has particular experience handling emergency motion practice, including temporary restraining orders and preliminary injunctions, in commercial and business disputes in New York and New Jersey.