N.Y. CPLR § 7804

NEW YORK CIVIL PRACTICE LAW AND RULES (CPLR) New York State | For Informational Purposes Only CPLR § 7804 Procedure § 7804. Procedure. (a) Special proceeding. A proceeding under thisarticle is a special proceeding.(b) Where proceeding brought. A proceeding under this article shall bebrought in the supreme court in the county specified in subdivision (b)of section 506 except as that subdivision otherwise provides.(c) Time for service of notice of petition and answer. Unless thecourt grants an order to show cause to be served in lieu of a notice ofpetition at a time and in a manner specified therein, a notice ofpetition, together with the petition and affidavits specified in thenotice, shall be served on any adverse party at least twenty days beforethe time at which the petition is noticed to be heard. An answer andsupporting affidavits, if any, shall be served at least five days beforesuch time. A reply, together with supporting affidavits, if any, shallbe served at least one day before such time. In the case of a proceedingpursuant to this article against a state body or officers, or againstmembers of a state body or officers whose terms have expired asauthorized by subdivision (b) of section 7802 of this chapter, commencedeither by order to show cause or notice of petition, in addition to theservice thereof provided in this section, the order to show cause ornotice of petition must be served upon the attorney general by deliveryof such order or notice to an assistant attorney general at an office ofthe attorney general in the county in which venue of the proceeding isdesignated, or if there is no office of the attorney general within suchcounty, at the office of the attorney general nearest such county. Inthe case of a proceeding pursuant to this article against members ofbodies of governmental subdivisions whose terms have expired asauthorized by sub e attorney general nearest such county. Inthe case of a proceeding pursuant to this article against members ofbodies of governmental subdivisions whose terms have expired asauthorized by subdivision (b) of section 7802 of this chapter, the orderto show cause or notice of petition must be served upon suchgovernmental subdivision in accordance with section 311 of this chapter.(d) Pleadings. There shall be a verified petition, which may beaccompanied by affidavits or other written proof. Where there is anadverse party there shall be a verified answer, which must statepertinent and material facts showing the grounds of the respondent'saction complained of. There shall be a reply to a counterclaimdenominated as such and there shall be a reply to new matter in theanswer or where the accuracy of proceedings annexed to the answer isdisputed. The court may permit such other pleadings as are authorized inan action upon such terms as it may specify.(e) Answering affidavits; record to be filed; default. The body orofficer shall file with the answer a certified transcript of the recordof the proceedings under consideration, unless such a transcript hasalready been filed with the clerk of the court. The respondent shallalso serve and submit with the answer affidavits or other written proofshowing such evidentiary facts as shall entitle him to a trial of anyissue of fact. The court may order the body or officer to supply anydefect or omission in the answer, transcript or an answering affidavit.Statements made in the answer, transcript or an answering affidavit arenot conclusive upon the petitioner. Should the body or officer faileither to file and serve an answer or to move to dismiss, the court mayeither issue a judgment in favor of the petitioner or order that ananswer be submitted.(f) Objections in point of law. The respondent may raise an objectionin point of law by setting it forth in hi issue a judgment in favor of the petitioner or order that ananswer be submitted.(f) Objections in point of law. The respondent may raise an objectionin point of law by setting it forth in his answer or by a motion todismiss the petition, made upon notice within the time allowed foranswer. If the motion is denied, the court shall permit the respondentto answer, upon such terms as may be just; and unless the orderspecifies otherwise, such answer shall be served and filed within fivedays after service of the order with notice of entry; and the petitionermay re-notice the matter for hearing upon two days' notice, or therespondent may re-notice the matter for hearing upon service of theanswer upon seven days' notice. The petitioner may raise an objection inpoint of law to new matter contained in the answer by setting it forthin his reply or by moving to strike such matter on the day the petitionis noticed or re-noticed to be heard.(g) Hearing and determination; transfer to appellate division. Wherethe --- NEW YORK CIVIL PRACTICE LAW AND RULES (CPLR) New York State | For Informational Purposes Only substantial evidence issue specified in question four of section7803 is not raised, the court in which the proceeding is commenced shallitself dispose of the issues in the proceeding. Where such an issue israised, the court shall first dispose of such other objections as couldterminate the proceeding, including but not limited to lack ofjurisdiction, statute of limitations and res judicata, without reachingthe substantial evidence issue. If the determination of the otherobjections does not terminate the proceeding, the court shall make anorder directing that it be transferred for disposition to a term of theappellate division held within the judicial department embracing thecounty in which the proceeding was commenced. When the proceeding comesbefore it, whether by appeal or transfer term of theappellate division held within the judicial department embracing thecounty in which the proceeding was commenced. When the proceeding comesbefore it, whether by appeal or transfer, the appellate division shalldispose of all issues in the proceeding, or, if the papers areinsufficient, it may remit the proceeding.(h) Trial. If a triable issue of fact is raised in a proceeding underthis article, it shall be tried forthwith. Where the proceeding wastransferred to the appellate division, the issue of fact shall be triedby a referee or by a justice of the supreme court and the verdict,report or decision rendered after the trial shall be returned to, andthe order thereon made by, the appellate division.(i) Appearance by judicial officer. Notwithstanding any otherprovision of law, where a proceeding is brought under this articleagainst a justice, judge, referee or judicial hearing officer appointedby a court and (1) it is brought by a party to a pending action orproceeding, and (2) it is based upon an act or acts performed by therespondent in that pending action or proceeding either granting ordenying relief sought by a party thereto, and (3) the respondent is nota named party to the pending action or proceeding, in addition toservice on the respondent, the petitioner shall serve a copy of thepetition together with copies of all moving papers upon all otherparties to the pending action or proceeding. All such parties shall bedesignated as respondents. Unless ordered by the court upon applicationof a party the respondent justice, judge, referee or judicial hearingofficer need not appear in the proceeding in which case the allegationsof the petition shall not be deemed admitted or denied by him. Uponelection of the justice, judge, referee or judicial hearing officer notto appear, any ruling, order or judgment of the court in such proceedingshall bind said respondent. If such r ed by him. Uponelection of the justice, judge, referee or judicial hearing officer notto appear, any ruling, order or judgment of the court in such proceedingshall bind said respondent. If such respondent does appear he shallrespond to the petition and shall be entitled to be represented by theattorney general. If such respondent does not elect to appear all otherparties shall be given notice thereof. CPLR § 7804 Page 2