2023 New York Laws › CVP - Civil Practice Law and Rules › Article 78 - Proceeding Against Body or Officer › 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.