N.Y. Civil Practice Law & Rules § 7804: Procedure

§ 7804. Procedure. (a) Special proceeding. A proceeding under this

article is a special proceeding.

(b) Where proceeding brought. A proceeding under this article shall be

brought 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 the

court grants an order to show cause to be served in lieu of a notice of

petition at a time and in a manner specified therein, a notice of

petition, together with the petition and affidavits specified in the

notice, shall be served on any adverse party at least twenty days before

the time at which the petition is noticed to be heard. An answer and

supporting affidavits, if any, shall be served at least five days before

such time. A reply, together with supporting affidavits, if any, shall

be served at least one day before such time. In the case of a proceeding

pursuant to this article against a state body or officers, or against

members of a state body or officers whose terms have expired as

authorized by subdivision (b) of section 7802 of this chapter, commenced

either by order to show cause or notice of petition, in addition to the

service thereof provided in this section, the order to show cause or

notice of petition must be served upon the attorney general by delivery

of such order or notice to an assistant attorney general at an office of

the attorney general in the county in which venue of the proceeding is

designated, or if there is no office of the attorney general within such

county, at the office of the attorney general nearest such county. In

the case of a proceeding pursuant to this article against members of

bodies of governmental subdivisions whose terms have expired as

authorized by subdivision (b) of section 7802 of this chapter, the order

to show cause or notice of petition must be served upon such

governmental subdivision in accordance with section 311 of this chapter.

(d) Pleadings. There shall be a verified petition, which may be

accompanied by affidavits or other written proof. Where there is an

adverse party there shall be a verified answer, which must state

pertinent and material facts showing the grounds of the respondent's

action complained of. There shall be a reply to a counterclaim

denominated as such and there shall be a reply to new matter in the

answer or where the accuracy of proceedings annexed to the answer is

disputed. The court may permit such other pleadings as are authorized in

an action upon such terms as it may specify.

(e) Answering affidavits; record to be filed; default. The body or

officer shall file with the answer a certified transcript of the record

of the proceedings under consideration, unless such a transcript has

already been filed with the clerk of the court. The respondent shall

also serve and submit with the answer affidavits or other written proof

showing such evidentiary facts as shall entitle him to a trial of any

issue of fact. The court may order the body or officer to supply any

defect or omission in the answer, transcript or an answering affidavit.

Statements made in the answer, transcript or an answering affidavit are

not conclusive upon the petitioner. Should the body or officer fail

either to file and serve an answer or to move to dismiss, the court may

either issue a judgment in favor of the petitioner or order that an

answer be submitted.

(f) Objections in point of law. The respondent may raise an objection

in point of law by setting it forth in his answer or by a motion to

dismiss the petition, made upon notice within the time allowed for

answer. If the motion is denied, the court shall permit the respondent

to answer, upon such terms as may be just; and unless the order

specifies otherwise, such answer shall be served and filed within five

days after service of the order with notice of entry; and the petitioner

may re-notice the matter for hearing upon two days' notice, or the

respondent may re-notice the matter for hearing upon service of the

answer upon seven days' notice. The petitioner may raise an objection in

point of law to new matter contained in the answer by setting it forth

in his reply or by moving to strike such matter on the day the petition

is noticed or re-noticed to be heard.

(g) Hearing and determination; transfer to appellate division. Where

the substantial evidence issue specified in question four of section

7803 is not raised, the court in which the proceeding is commenced shall

itself dispose of the issues in the proceeding. Where such an issue is

raised, the court shall first dispose of such other objections as could

terminate the proceeding, including but not limited to lack of

jurisdiction, statute of limitations and res judicata, without reaching

the substantial evidence issue. If the determination of the other

objections does not terminate the proceeding, the court shall make an

order directing that it be transferred for disposition to a term of the

appellate division held within the judicial department embracing the

county in which the proceeding was commenced. When the proceeding comes

before it, whether by appeal or transfer, the appellate division shall

dispose of all issues in the proceeding, or, if the papers are

insufficient, it may remit the proceeding.

(h) Trial. If a triable issue of fact is raised in a proceeding under

this article, it shall be tried forthwith. Where the proceeding was

transferred to the appellate division, the issue of fact shall be tried

by a referee or by a justice of the supreme court and the verdict,

report or decision rendered after the trial shall be returned to, and

the order thereon made by, the appellate division.

(i) Appearance by judicial officer. Notwithstanding any other

provision of law, where a proceeding is brought under this article

against a justice, judge, referee or judicial hearing officer appointed

by a court and (1) it is brought by a party to a pending action or

proceeding, and (2) it is based upon an act or acts performed by the

respondent in that pending action or proceeding either granting or

denying relief sought by a party thereto, and (3) the respondent is not

a named party to the pending action or proceeding, in addition to

service on the respondent, the petitioner shall serve a copy of the

petition together with copies of all moving papers upon all other

parties to the pending action or proceeding. All such parties shall be

designated as respondents. Unless ordered by the court upon application

of a party the respondent justice, judge, referee or judicial hearing

officer need not appear in the proceeding in which case the allegations

of the petition shall not be deemed admitted or denied by him. Upon

election of the justice, judge, referee or judicial hearing officer not

to appear, any ruling, order or judgment of the court in such proceeding

shall bind said respondent. If such respondent does appear he shall

respond to the petition and shall be entitled to be represented by the

attorney general. If such respondent does not elect to appear all other

parties shall be given notice thereof.