N.Y. ERL Law § 9 — New York Code / Act ERL / Section 9
Judicial review
Status: in_force

§ 9. Judicial review. 1. Any person who is aggrieved by the final\ndetermination of a protest may, in accordance with article seventy-eight\nof the civil practice law and rules, within sixty days after such\ndetermination, commence a proceeding in the supreme court praying that\nthe regulation or order protested be enjoined or set aside in whole or\nin part. Such proceeding may at the option of the petitioner be\ninstituted in the county where the commission has its principal office\nor where the property is located. The answer shall include a statement\nsetting forth, so far as practicable, the economic data and other facts\nof which the commission has taken official notice. Upon the filing of\nsuch petition the court shall have jurisdiction to set aside such\nregulation or order, in whole or in part, to dismiss the petition, or to\nremit the proceeding to the commission; provided, however, that the\nregulation or order may be modified or rescinded by the commission at\nany time notwithstanding the pendency of such proceeding for review. No\nobjection to such regulation or order, and no evidence in support of any\nobjection thereto, shall be considered by the court, unless such\nobjection shall have been set forth by the petitioner in the protest or\nsuch evidence shall be contained in the return. If application is made\nto the court by either party for leave to introduce additional evidence\nwhich was either offered and not admitted, or which could not reasonably\nhave been offered or included in such proceedings before the commission,\nand the court determines that such evidence should be admitted, the\ncourt shall order the evidence to be presented to the commission. The\ncommission shall promptly receive the same, and such other evidence as\nthe commission deems necessary or proper, and thereupon the commission\nshall file with the court the original or a transcript thereof and any\nmodification made in regulation or order as a result thereof; except\nthat on request by the commission, any such evidence shall be presented\ndirectly to the court. Upon final determination of the proceeding before\nthe court, the original record, if filed by the commission with the\ncourt, shall be returned to the commission.\n  2. No such regulation or order shall be enjoined or set aside, in\nwhole or in part, unless the petitioner shall establish to the\nsatisfaction of the court that the regulation or order is not in\naccordance with law, or is arbitrary or capricious. The effectiveness of\nan order of the court enjoining or setting aside, in whole or in part,\nany such regulation or order shall be postponed until the expiration of\nthirty days from the entry thereof. The jurisdiction of the supreme\ncourt shall be exclusive and its order dismissing the petition or\nenjoining or setting aside such regulation or order, in whole or in\npart, shall be final, subject to review by the appellate division of the\nsupreme court and the court of appeals in the same manner and form and\nwith the same effect as provided by law for appeals from a judgment in a\nspecial proceeding.  Notwithstanding any provision of section thirteen\nhundred four of the civil practice act to the contrary, any order of the\ncourt remitting the proceeding to the commission may, at the election of\nthe commission, be subject to review by the appellate division of the\nsupreme court and the court of appeals in the same manner and form and\nwith the same effect as provided in the civil practice act for appeals\nfrom a final order in a special proceeding. All such proceedings shall\nbe heard and determined by the court and by any appellate court as\nexpeditiously as possible and with lawful precedence over other matters.\nAll such proceedings for review shall be heard on the petition,\ntranscript and other papers, and on appeal shall be heard on the record,\nwithout requirement of printing.\n  3. (a) Within thirty days after arraignment, or such additional time\nas the court may allow for good cause shown, in any criminal proceeding,\nand within five days after judgment in any civil or criminal proceeding,\nbrought pursuant to section eleven involving alleged violation of any\nprovision of any regulation or order, the defendant may apply to the\ncourt in which the proceeding is pending for leave to file in the\nsupreme court a petition setting forth objections to the validity of any\nprovision which the defendant is alleged to have violated or conspired\nto violate. The court in which the proceeding is pending shall grant\nsuch leave with respect to any objection which it finds is made in good\nfaith and with respect to which it finds there is reasonable and\nsubstantial excuse for the defendant's failure to present such objection\nin a protest filed in accordance with section eight. Upon the filing of\na petition pursuant to and within thirty days from the granting of such\nleave, the supreme court shall have jurisdiction to enjoin or set aside\nin whole or in part the provision of the regulation or order complained\nof or to dismiss the petition. The court may authorize the introduction\nof evidence, either to the commission or directly to the court, in\naccordance with subdivision one of this section. The provisions of\nsubdivision two of this section shall be applicable with respect to any\nproceedings instituted in accordance with this subdivision.\n  (b) In any proceeding brought pursuant to section eleven of this act\ninvolving an alleged violation of any provision of any such regulation\nor order, the court shall stay the proceeding:\n  (1) during the period within which a petition may be filed in the\nsupreme court pursuant to leave granted under paragraph (a) of this\nsubdivision with respect to such provision;\n  (2) during the pendency of any protest properly filed by the defendant\nunder section eight prior to the institution of the proceeding under\nsection eleven of this act, setting forth objections to the validity of\nsuch provision which the court finds to have been made in good faith;\nand\n  (3) during the pendency of any judicial proceeding instituted by the\ndefendant under this section with respect to such protest or instituted\nby the defendant under paragraph (a) of this subdivision with respect to\nsuch provision, and until the expiration of the time allowed in this\nsection for the taking of further proceedings with respect thereto.\n  (c) Notwithstanding the provisions of paragraph (b) of this\nsubdivision, stays shall be granted thereunder in civil proceedings only\nafter judgment and upon application made within five days after\njudgment.  Notwithstanding the provisions of paragraph (b) of this\nsubdivision, in the case of a proceeding under subdivision one of\nsection eleven the court granting a stay under paragraph (b) of this\nsubdivision shall issue a temporary injunction or restraining order\nenjoining or restraining, during the period of the stay, violations by\nthe defendant of any provision of the regulation or order involved in\nthe proceeding.  If any provision of a regulation or order is determined\nto be invalid by judgment of the supreme court which has become\neffective in accordance with subdivision two of this section, any\nproceeding pending in any court shall be dismissed, and any judgment in\nsuch proceeding vacated, to the extent that such proceeding or judgment\nis based upon violation of such provision. Except as provided in this\nsubdivision, the pendency of any protest under section eight, or\njudicial proceeding under this section, shall not be grounds for staying\nany proceeding brought pursuant to section eleven; nor, except as\nprovided in this subdivision, shall any retroacitve effect be given to\nany judgment setting aside a provision of a regulation or order.\n  4. The method prescribed herein for the judicial review of a\nregulation or order shall be exclusive.\n