N.Y. Emergency Housing Rent Control Law 274/46 337/61 § 9: Judicial review

§ 9. Judicial review. 1. Any person who is aggrieved by the final

determination of a protest may, in accordance with article seventy-eight

of the civil practice law and rules, within sixty days after such

determination, commence a proceeding in the supreme court praying that

the regulation or order protested be enjoined or set aside in whole or

in part. Such proceeding may at the option of the petitioner be

instituted in the county where the commission has its principal office

or where the property is located. The answer shall include a statement

setting forth, so far as practicable, the economic data and other facts

of which the commission has taken official notice. Upon the filing of

such petition the court shall have jurisdiction to set aside such

regulation or order, in whole or in part, to dismiss the petition, or to

remit the proceeding to the commission; provided, however, that the

regulation or order may be modified or rescinded by the commission at

any time notwithstanding the pendency of such proceeding for review. No

objection to such regulation or order, and no evidence in support of any

objection thereto, shall be considered by the court, unless such

objection shall have been set forth by the petitioner in the protest or

such evidence shall be contained in the return. If application is made

to the court by either party for leave to introduce additional evidence

which was either offered and not admitted, or which could not reasonably

have been offered or included in such proceedings before the commission,

and the court determines that such evidence should be admitted, the

court shall order the evidence to be presented to the commission. The

commission shall promptly receive the same, and such other evidence as

the commission deems necessary or proper, and thereupon the commission

shall file with the court the original or a transcript thereof and any

modification made in regulation or order as a result thereof; except

that on request by the commission, any such evidence shall be presented

directly to the court. Upon final determination of the proceeding before

the court, the original record, if filed by the commission with the

court, shall be returned to the commission.

2. No such regulation or order shall be enjoined or set aside, in

whole or in part, unless the petitioner shall establish to the

satisfaction of the court that the regulation or order is not in

accordance with law, or is arbitrary or capricious. The effectiveness of

an order of the court enjoining or setting aside, in whole or in part,

any such regulation or order shall be postponed until the expiration of

thirty days from the entry thereof. The jurisdiction of the supreme

court shall be exclusive and its order dismissing the petition or

enjoining or setting aside such regulation or order, in whole or in

part, shall be final, subject to review by the appellate division of the

supreme court and the court of appeals in the same manner and form and

with the same effect as provided by law for appeals from a judgment in a

special proceeding. Notwithstanding any provision of section thirteen

hundred four of the civil practice act to the contrary, any order of the

court remitting the proceeding to the commission may, at the election of

the commission, be subject to review by the appellate division of the

supreme court and the court of appeals in the same manner and form and

with the same effect as provided in the civil practice act for appeals

from a final order in a special proceeding. All such proceedings shall

be heard and determined by the court and by any appellate court as

expeditiously as possible and with lawful precedence over other matters.

All such proceedings for review shall be heard on the petition,

transcript and other papers, and on appeal shall be heard on the record,

without requirement of printing.

3. (a) Within thirty days after arraignment, or such additional time

as the court may allow for good cause shown, in any criminal proceeding,

and within five days after judgment in any civil or criminal proceeding,

brought pursuant to section eleven involving alleged violation of any

provision of any regulation or order, the defendant may apply to the

court in which the proceeding is pending for leave to file in the

supreme court a petition setting forth objections to the validity of any

provision which the defendant is alleged to have violated or conspired

to violate. The court in which the proceeding is pending shall grant

such leave with respect to any objection which it finds is made in good

faith and with respect to which it finds there is reasonable and

substantial excuse for the defendant's failure to present such objection

in a protest filed in accordance with section eight. Upon the filing of

a petition pursuant to and within thirty days from the granting of such

leave, the supreme court shall have jurisdiction to enjoin or set aside

in whole or in part the provision of the regulation or order complained

of or to dismiss the petition. The court may authorize the introduction

of evidence, either to the commission or directly to the court, in

accordance with subdivision one of this section. The provisions of

subdivision two of this section shall be applicable with respect to any

proceedings instituted in accordance with this subdivision.

(b) In any proceeding brought pursuant to section eleven of this act

involving an alleged violation of any provision of any such regulation

or order, the court shall stay the proceeding:

(1) during the period within which a petition may be filed in the

supreme court pursuant to leave granted under paragraph (a) of this

subdivision with respect to such provision;

(2) during the pendency of any protest properly filed by the defendant

under section eight prior to the institution of the proceeding under

section eleven of this act, setting forth objections to the validity of

such provision which the court finds to have been made in good faith;

and

(3) during the pendency of any judicial proceeding instituted by the

defendant under this section with respect to such protest or instituted

by the defendant under paragraph (a) of this subdivision with respect to

such provision, and until the expiration of the time allowed in this

section for the taking of further proceedings with respect thereto.

(c) Notwithstanding the provisions of paragraph (b) of this

subdivision, stays shall be granted thereunder in civil proceedings only

after judgment and upon application made within five days after

judgment. Notwithstanding the provisions of paragraph (b) of this

subdivision, in the case of a proceeding under subdivision one of

section eleven the court granting a stay under paragraph (b) of this

subdivision shall issue a temporary injunction or restraining order

enjoining or restraining, during the period of the stay, violations by

the defendant of any provision of the regulation or order involved in

the proceeding. If any provision of a regulation or order is determined

to be invalid by judgment of the supreme court which has become

effective in accordance with subdivision two of this section, any

proceeding pending in any court shall be dismissed, and any judgment in

such proceeding vacated, to the extent that such proceeding or judgment

is based upon violation of such provision. Except as provided in this

subdivision, the pendency of any protest under section eight, or

judicial proceeding under this section, shall not be grounds for staying

any proceeding brought pursuant to section eleven; nor, except as

provided in this subdivision, shall any retroacitve effect be given to

any judgment setting aside a provision of a regulation or order.

4. The method prescribed herein for the judicial review of a

regulation or order shall be exclusive.