§ 7804 — Procedure

New York § 7804

• Jurisdiction: New York
• Law CVP: Civil Practice Law & Rules
• Art. 78: Proceeding Against Body or Officer

Text

§ 7804. Procedure. (a) Special proceeding. A proceeding under this\narticle is a special proceeding.\n (b) Where proceeding brought. A proceeding under this article shall be\nbrought in the supreme court in the county specified in subdivision (b)\nof section 506 except as that subdivision otherwise provides.\n (c) Time for service of notice of petition and answer. Unless the\ncourt grants an order to show cause to be served in lieu of a notice of\npetition at a time and in a manner specified therein, a notice of\npetition, together with the petition and affidavits specified in the\nnotice, shall be served on any adverse party at least twenty days before\nthe time at which the petition is noticed to be heard. An answer and\nsupporting affidavits, if any, shall be served at least five days before\nsuch time. A reply, together with supporting affidavits, if any, shall\nbe served at least one day before such time. In the case of a proceeding\npursuant to this article against a state body or officers, or against\nmembers of a state body or officers whose terms have expired as\nauthorized by subdivision (b) of section 7802 of this chapter, commenced\neither by order to show cause or notice of petition, in addition to the\nservice thereof provided in this section, the order to show cause or\nnotice of petition must be served upon the attorney general by delivery\nof such order or notice to an assistant attorney general at an office of\nthe attorney general in the county in which venue of the proceeding is\ndesignated, or if there is no office of the attorney general within such\ncounty, at the office of the attorney general nearest such county. In\nthe case of a proceeding pursuant to this article against members of\nbodies of governmental subdivisions whose terms have expired as\nauthorized by subdivision (b) of section 7802 of this chapter, the order\nto show cause or notice of petition must be served upon such\ngovernmental subdivision in accordance with section 311 of this chapter.\n (d) Pleadings. There shall be a verified petition, which may be\naccompanied by affidavits or other written proof. Where there is an\nadverse party there shall be a verified answer, which must state\npertinent and material facts showing the grounds of the respondent's\naction complained of. There shall be a reply to a counterclaim\ndenominated as such and there shall be a reply to new matter in the\nanswer or where the accuracy of proceedings annexed to the answer is\ndisputed. The court may permit such other pleadings as are authorized in\nan action upon such terms as it may specify.\n (e) Answering affidavits; record to be filed; default. The body or\nofficer shall file with the answer a certified transcript of the record\nof the proceedings under consideration, unless such a transcript has\nalready been filed with the clerk of the court. The respondent shall\nalso serve and submit with the answer affidavits or other written proof\nshowing such evidentiary facts as shall entitle him to a trial of any\nissue of fact. The court may order the body or officer to supply any\ndefect or omission in the answer, transcript or an answering affidavit.\nStatements made in the answer, transcript or an answering affidavit are\nnot conclusive upon the petitioner. Should the body or officer fail\neither to file and serve an answer or to move to dismiss, the court may\neither issue a judgment in favor of the petitioner or order that an\nanswer be submitted.\n (f) Objections in point of law. The respondent may raise an objection\nin point of law by setting it forth in his answer or by a motion to\ndismiss the petition, made upon notice within the time allowed for\nanswer. If the motion is denied, the court shall permit the respondent\nto answer, upon such terms as may be just; and unless the order\nspecifies otherwise, such answer shall be served and filed within five\ndays after service of the order with notice of entry; and the petitioner\nmay re-notice the matter for hearing upon two days' notice, or the\nrespondent may re-notice the matter for hearing upon service of the\nanswer upon seven days' notice. The petitioner may raise an objection in\npoint of law to new matter contained in the answer by setting it forth\nin his reply or by moving to strike such matter on the day the petition\nis noticed or re-noticed to be heard.\n (g) Hearing and determination; transfer to appellate division. Where\nthe substantial evidence issue specified in question four of section\n7803 is not raised, the court in which the proceeding is commenced shall\nitself dispose of the issues in the proceeding. Where such an issue is\nraised, the court shall first dispose of such other objections as could\nterminate the proceeding, including but not limited to lack of\njurisdiction, statute of limitations and res judicata, without reaching\nthe substantial evidence issue. If the determination of the other\nobjections does not terminate the proceeding, the court shall make an\norder directing that it be transferred for disposition to a term of the\nappellate division held within the judicial department embracing the\ncounty in which the proceeding was commenced. When the proceeding comes\nbefore it, whether by appeal or transfer, the appellate division shall\ndispose of all issues in the proceeding, or, if the papers are\ninsufficient, it may remit the proceeding.\n (h) Trial. If a triable issue of fact is raised in a proceeding under\nthis article, it shall be tried forthwith. Where the proceeding was\ntransferred to the appellate division, the issue of fact shall be tried\nby a referee or by a justice of the supreme court and the verdict,\nreport or decision rendered after the trial shall be returned to, and\nthe order thereon made by, the appellate division.\n (i) Appearance by judicial officer. Notwithstanding any other\nprovision of law, where a proceeding is brought under this article\nagainst a justice, judge, referee or judicial hearing officer appointed\nby a court and (1) it is brought by a party to a pending action or\nproceeding, and (2) it is based upon an act or acts performed by the\nrespondent in that pending action or proceeding either granting or\ndenying relief sought by a party thereto, and (3) the respondent is not\na named party to the pending action or proceeding, in addition to\nservice on the respondent, the petitioner shall serve a copy of the\npetition together with copies of all moving papers upon all other\nparties to the pending action or proceeding. All such parties shall be\ndesignated as respondents. Unless ordered by the court upon application\nof a party the respondent justice, judge, referee or judicial hearing\nofficer need not appear in the proceeding in which case the allegations\nof the petition shall not be deemed admitted or denied by him. Upon\nelection of the justice, judge, referee or judicial hearing officer not\nto appear, any ruling, order or judgment of the court in such proceeding\nshall bind said respondent. If such respondent does appear he shall\nrespond to the petition and shall be entitled to be represented by the\nattorney general. If such respondent does not elect to appear all other\nparties shall be given notice thereof.\n