Torgova v Ennismore Holdings US Inc.

Supreme Court, Kings County

Decided on July 17, 2026

Index No. 504023/2026

Aaron D. Maslow, J.

The following numbered papers were used on this decision: NYSCEF Document Numbers 1, 8, 13-15, 20-25.

Introduction

Plaintiff Yelena Torgova commenced this action against Defendants on February 3, 2026, alleging negligence. On June 29, 2025, Plaintiff was located at SLS Hotel Playa Mujeres in Cancún, Q.R, Mexico. She purportedly came into contact with shards of broken glass on the floor of the Hudson Tavern restaurant located within the hotel and sustained serious injuries. Plaintiff alleges that these injuries are a result of negligence on the part of Defendants. (See NY St Cts Elec Filing [NYSCEF] Doc No. 1.)

On April 30, 2026, Moving Defendants Ennismore Holdings US Inc., Ennismore International USA, Inc., and Accor Franchising US LLC filed a proposed ex parte order to extend by 30 days the deadline for answering the complaint or moving with respect to it, due to scheduling constraints on the part of Moving Defendants and their counsel (see NYSCEF Doc Nos. 13, 14). The proposed ex parte order was filed on the last day of the time period specified in a stipulation allowing for an extension of time to answer the complaint (see NYSCEF Doc No. 8). The proposed ex parte order was not brought to the Court's attention until Moving Defendants filed a proposed order to show cause seeking the same relief approximately one month later, on May 29 (see NYSCEF Doc No. 20).

On June 5, 2026, the Court declined to sign both the proposed ex parte order and the proposed order to show cause, due to the absence of language required by CPLR 2106 (a) in the supporting affirmations attached to them, as well as a violation of 22 NYCRR 202.7 (f) with respect to the proposed order to show cause. This decision explains the reasoning underlying the Court's declining to sign them.

Discussion

The proposed ex parte motion filed by Moving Defendants stated that it provided a supporting affidavit (see NYSCEF Doc No. 13). However, only an affirmation was filed (see NYSCEF Doc. No. 14), and said affirmation did not include the language required by CPLR 2106 (a) in full, nor did it include a date. Similarly, the proposed order to show cause sought the same relief as the proposed ex parte motion and included a similar affirmation which lacked the requisite language (see NYSCEF Doc No. 20).

In recent years, CPLR 2106 was amended to allow for the submission of unsworn affirmations in lieu of notarized affidavits. These affirmations require specific language in order to be admissible in court. Pursuant to CPLR 2106 (a), last amended effective November 21, 2025, an affirmation shall be in substantially the following form:

I affirm this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, except as to matters alleged on information and belief and as to those matters I believe it to be true, and I understand that this document may be filed in an action or proceeding in a court of law.

The First Department has upheld this standard, rejecting an affirmation in Matter of Grandsard v Hutchinson (227 AD3d 491 [1st Dept], affg for reasons stated by Sup Ct, 2024 WL 1957086 [Sup Ct, NY County 2024]) which was made merely "under the penalty of perjury." In Grandsard, the Supreme Court cited Paez v Board of Elections (2023 NY Slip Op 31438[U] [Sup Ct, NY County 2023]), holding that an affirmation lacking the language that CPLR 2106 now required failed to demonstrate an appreciation for the gravity of the factual account related and was ultimately not a verification at all. Similarly, the Supreme Court in R.F. v L.K. (82 Misc 3d 1221[A], 2024 NY Slip Op 50358[U] [Sup Ct, Westchester County 2024]) held that because the defendant's affirmation did not include the required language, it was "not in admissible form and cannot be relied upon as proof of facts set forth therein."

Thus, in the absence of the date and additional language required by CPLR 2106 (a), Moving Defendant's proposed ex parte motion and proposed order to show cause were not in admissible form and could not be relied upon as proof of the facts set forth therein. Since the affirmations were improperly verified, the relief sought — signing the proposed ex parte order and the proposed order to show cause — could not be granted.

Additionally, 22 NYCRR 202.7 (f) requires that any application for temporary injunctive relief, in the absence of a showing of significant prejudice to the party seeking the temporary restraining order, must include an affirmation which demonstrates "that a good faith effort has been made to notify the party against whom the temporary restraining order is sought of the time, date and place that the application will be made in a manner sufficient to permit the party an opportunity to appear in response to the application." The proposed order to show submitted by Moving Defendants included temporary restraining orders:

ORDERED that the running of time for the Moving Defendants to answer the Amended Complaint is frozen until the Court determines whether the requested extension shall be granted.

ORDERED that Plaintiff and/or her attorney are prohibited from filing and entering a default judgment until the Court determines whether the requested extension shall be granted. (NYSCEF Doc No. 20 at 1.)

In Tesone v Hoffman (84 AD3d 1219, 1220-1221 [2d Dept 2011]), the Second Department held that the Supreme Court should not have granted an ex parte motion for a temporary restraining order because "the plaintiffs failed to allege or demonstrate 'significant prejudice to the party seeking the restraining order by the giving of notice' (22 NYCRR 202.7[f])." Similarly, in Dixon v Roy (21 Misc 3d 1117[A], 2008 NY Slip Op 52086[U]), the Kings County Supreme Court granted an award of reasonable attorney's fees and costs incurred by a party in connection with vacating a temporary restraining order, [*2]which was obtained without notify the opposing party of the intent to seek it, which violated this rule.

Moving Defendants' proposed order to show cause contained temporary restraining orders (see NYSCEF Doc. No. 20 at 1) and they did not make any showing of significant prejudice which would have exempted them from the good faith effort to notify the other parties, as required by 22 NYCRR 202.7 (f). In the absence of such a good faith effort to notify, the submission of the proposed order to show case was in violation of this court rule, and the Court could not grant the relief of signing it.

Conclusion

Accordingly, the Court determines that it was proper and in conformity with the law to decline to sign both the proposed ex parte order and the proposed order to show cause.

Dated: July 17, 2026

Brooklyn, New York,

HON. AARON D. MASLOW

Justice of the Supreme Court of the

State of New York