N.Y. General Municipal Law § 712: Adjudication and determination in the supreme court

§ 712. Adjudication and determination in the supreme court. 1. In the

event that one or more but not all of the governing boards of the

affected local governments shall determine that it is not in the

over-all public interest to approve the proposed annexation, the

governing board of any other affected local government may apply to the

appellate division of the supreme court for adjudication and

determination, on the law and facts, of the issue of whether the

proposed annexation is in the over-all public interest.

2. A proceeding brought under this section shall be a special

proceeding and, except as otherwise provided herein, shall be governed

by the provisions of article four of the civil practice law and rules.

Such proceeding shall be brought in the judicial district embracing any

county in which all or part of the territory proposed to be annexed is

located, within thirty days after the filing in the office of the county

clerk of the order by which such determination was made.

3. The appellate division may stay or transfer and consolidate with

the proceeding brought pursuant to subdivision one of this section any

other proceeding brought against one of the parties pursuant to the

provisions of article seventy-eight of the civil practice law and rules

concerning a matter described in paragraphs a, b, c or d of subdivision

one of section seven hundred five of this article and pending in any

court.

4. Notwithstanding the provisions of section four hundred one of the

civil practice law and rules or any other general or special law, after

a proceeding is commenced pursuant to subdivision one of this section,

intervention in such proceeding shall be allowed the following parties

as a matter of right provided they shall have appeared formally at the

hearing held pursuant to section seven hundred five of this article:

a. Any school district, fire district or other district corporation,

public benefit corporation (where a majority of the governing board of

such public benefit corporation is appointed by an officer or board of

one or more of the affected local governments), or town or county

improvement district, situated wholly or partly in the territory

proposed to be annexed.

b. Any owner of taxable property located in the territory proposed to

be annexed.

5. In the event of default in appearance of all necessary respondents

and failure to intervene on the part of any party described in

subdivision four of this section no triable issue of fact shall be

deemed to have been raised, and the court may make a summary

determination upon the pleadings and record.

6. The court, by order of reference, shall designate three referees,

one of whom shall be either a justice of the supreme court or a retired

justice of the supreme court or any judge temporarily assigned to the

supreme court, to hear and report to the court after a trial conducted

in the same manner as a court trying an issue without a jury. The

provisions of article forty-four of the civil practice law and rules

applicable to trial by the court shall apply to a reference pursuant to

this section.

7. In order that the issues in such proceeding may be determined in

advance so far as practicable and that the parties may be encouraged to

stipulate and agree on questions of law and fact which may not be in

dispute, a pre-trial conference shall be held by one or more of the

referees so designated. At such pre-trial conference, upon such terms as

in his or their discretion may seem proper, the referee or referees

holding such pre-trial conference may:

a. Direct pre-trial disclosure of evidence and discovery and

inspection of books, records and documents;

b. Permit the taking of depositions for use at the trial;

c. Limit or restrict the number of experts to be heard as witnesses;

d. Clarify and define the issues to be tried.

8. Before the case is finally submitted to the referees the parties

shall be given an opportunity to submit requests for proposed findings

of fact.

9. The referees shall file their report setting forth findings of fact

and conclusions of law within thirty days after the matter is finally

submitted. The referees' findings on the issue of whether the annexation

is in the over-all public interest may be based on provisions for the

adjustment of indebtedness and liabilities or disposition of property

prescribed in subdivision one of section seven hundred seven and

subdivision one of section seven hundred eight of this article for cases

where no agreement governing such adjustments or disposition shall have

been executed, or such findings may be based on alternative adjustments

as recommended in the report and which might have been agreed upon

pursuant to the other provisions of such sections. Unless otherwise

stipulated, a transcript of the testimony together with the exhibits or

copies thereof shall be filed with the report.

10. Upon receipt of the referees' report, the appellate division

shall, after hearing oral argument on the report of the referees, make

its own adjudication and determination, on the law and the facts, on all

questions presented to the referees and substitute its judgment for that

of any of the governing boards of the local governments as made in their

respective determinations and enter its judgment on the issue of whether

the annexation is in the over-all public interest and on any question of

compliance with procedural provisions of this article where such

questions are before it. Such determinations shall also include

directions of the court, if any, as to the manner in which indebtedness

or other liabilities shall be assumed and property shall be disposed of

subject to the provisions of sections seven hundred seven and seven

hundred eight of this article.

11. Costs shall not be allowed against any governing board of a local

government in a proceeding brought under subdivision one of this section

to review a determination of a governing board unless such local

government fails to respond to the petition filed in such proceeding.

12. A final judgment pursuant to this section or an order of a

governing board of a local government determining that a proposed

annexation is not in the over-all public interest shall not be a bar to

the filing of a new petition for the same annexation.