§ 712 — Adjudication and determination in the supreme court

New York § 712

• Jurisdiction: New York
• Law GMU: General Municipal
• Art. 17: Municipal Annexation Law

Text

§ 712. Adjudication and determination in the supreme court. 1. In the\nevent that one or more but not all of the governing boards of the\naffected local governments shall determine that it is not in the\nover-all public interest to approve the proposed annexation, the\ngoverning board of any other affected local government may apply to the\nappellate division of the supreme court for adjudication and\ndetermination, on the law and facts, of the issue of whether the\nproposed annexation is in the over-all public interest.\n 2. A proceeding brought under this section shall be a special\nproceeding and, except as otherwise provided herein, shall be governed\nby the provisions of article four of the civil practice law and rules.\nSuch proceeding shall be brought in the judicial district embracing any\ncounty in which all or part of the territory proposed to be annexed is\nlocated, within thirty days after the filing in the office of the county\nclerk of the order by which such determination was made.\n 3. The appellate division may stay or transfer and consolidate with\nthe proceeding brought pursuant to subdivision one of this section any\nother proceeding brought against one of the parties pursuant to the\nprovisions of article seventy-eight of the civil practice law and rules\nconcerning a matter described in paragraphs a, b, c or d of subdivision\none of section seven hundred five of this article and pending in any\ncourt.\n 4. Notwithstanding the provisions of section four hundred one of the\ncivil practice law and rules or any other general or special law, after\na proceeding is commenced pursuant to subdivision one of this section,\nintervention in such proceeding shall be allowed the following parties\nas a matter of right provided they shall have appeared formally at the\nhearing held pursuant to section seven hundred five of this article:\n a. Any school district, fire district or other district corporation,\npublic benefit corporation (where a majority of the governing board of\nsuch public benefit corporation is appointed by an officer or board of\none or more of the affected local governments), or town or county\nimprovement district, situated wholly or partly in the territory\nproposed to be annexed.\n b. Any owner of taxable property located in the territory proposed to\nbe annexed.\n 5. In the event of default in appearance of all necessary respondents\nand failure to intervene on the part of any party described in\nsubdivision four of this section no triable issue of fact shall be\ndeemed to have been raised, and the court may make a summary\ndetermination upon the pleadings and record.\n 6. The court, by order of reference, shall designate three referees,\none of whom shall be either a justice of the supreme court or a retired\njustice of the supreme court or any judge temporarily assigned to the\nsupreme court, to hear and report to the court after a trial conducted\nin the same manner as a court trying an issue without a jury. The\nprovisions of article forty-four of the civil practice law and rules\napplicable to trial by the court shall apply to a reference pursuant to\nthis section.\n 7. In order that the issues in such proceeding may be determined in\nadvance so far as practicable and that the parties may be encouraged to\nstipulate and agree on questions of law and fact which may not be in\ndispute, a pre-trial conference shall be held by one or more of the\nreferees so designated. At such pre-trial conference, upon such terms as\nin his or their discretion may seem proper, the referee or referees\nholding such pre-trial conference may:\n a. Direct pre-trial disclosure of evidence and discovery and\ninspection of books, records and documents;\n b. Permit the taking of depositions for use at the trial;\n c. Limit or restrict the number of experts to be heard as witnesses;\n d. Clarify and define the issues to be tried.\n 8. Before the case is finally submitted to the referees the parties\nshall be given an opportunity to submit requests for proposed findings\nof fact.\n 9. The referees shall file their report setting forth findings of fact\nand conclusions of law within thirty days after the matter is finally\nsubmitted. The referees' findings on the issue of whether the annexation\nis in the over-all public interest may be based on provisions for the\nadjustment of indebtedness and liabilities or disposition of property\nprescribed in subdivision one of section seven hundred seven and\nsubdivision one of section seven hundred eight of this article for cases\nwhere no agreement governing such adjustments or disposition shall have\nbeen executed, or such findings may be based on alternative adjustments\nas recommended in the report and which might have been agreed upon\npursuant to the other provisions of such sections. Unless otherwise\nstipulated, a transcript of the testimony together with the exhibits or\ncopies thereof shall be filed with the report.\n 10. Upon receipt of the referees' report, the appellate division\nshall, after hearing oral argument on the report of the referees, make\nits own adjudication and determination, on the law and the facts, on all\nquestions presented to the referees and substitute its judgment for that\nof any of the governing boards of the local governments as made in their\nrespective determinations and enter its judgment on the issue of whether\nthe annexation is in the over-all public interest and on any question of\ncompliance with procedural provisions of this article where such\nquestions are before it. Such determinations shall also include\ndirections of the court, if any, as to the manner in which indebtedness\nor other liabilities shall be assumed and property shall be disposed of\nsubject to the provisions of sections seven hundred seven and seven\nhundred eight of this article.\n 11. Costs shall not be allowed against any governing board of a local\ngovernment in a proceeding brought under subdivision one of this section\nto review a determination of a governing board unless such local\ngovernment fails to respond to the petition filed in such proceeding.\n 12. A final judgment pursuant to this section or an order of a\ngoverning board of a local government determining that a proposed\nannexation is not in the over-all public interest shall not be a bar to\nthe filing of a new petition for the same annexation.\n