§ 7804. Procedure. (a) Special proceeding. A proceeding under this\narticle is a special proceeding.\n (b) Where proceeding brought. A proceeding under this article shall be\nbrought in the supreme court in the county specified in subdivision (b)\nof section 506 except as that subdivision otherwise provides.\n (c) Time for service of notice of petition and answer. Unless the\ncourt grants an order to show cause to be served in lieu of a notice of\npetition at a time and in a manner specified therein, a notice of\npetition, together with the petition and affidavits specified in the\nnotice, shall be served on any adverse party at least twenty days before\nthe time at which the petition is noticed to be heard. An answer and\nsupporting affidavits, if any, shall be served at least five days before\nsuch time. A reply, together with supporting affidavits, if any, shall\nbe served at least one day before such time. In the case of a proceeding\npursuant to this article against a state body or officers, or against\nmembers of a state body or officers whose terms have expired as\nauthorized by subdivision (b) of section 7802 of this chapter, commenced\neither by order to show cause or notice of petition, in addition to the\nservice thereof provided in this section, the order to show cause or\nnotice of petition must be served upon the attorney general by delivery\nof such order or notice to an assistant attorney general at an office of\nthe attorney general in the county in which venue of the proceeding is\ndesignated, or if there is no office of the attorney general within such\ncounty, at the office of the attorney general nearest such county. In\nthe case of a proceeding pursuant to this article against members of\nbodies of governmental subdivisions whose terms have expired as\nauthorized by subdivision (b) of section 7802 of this chapter, the order\nto show cause or notice of petition must be served upon such\ngovernmental subdivision in accordance with section 311 of this chapter.\n (d) Pleadings. There shall be a verified petition, which may be\naccompanied by affidavits or other written proof. Where there is an\nadverse party there shall be a verified answer, which must state\npertinent and material facts showing the grounds of the respondent's\naction complained of. There shall be a reply to a counterclaim\ndenominated as such and there shall be a reply to new matter in the\nanswer or where the accuracy of proceedings annexed to the answer is\ndisputed. The court may permit such other pleadings as are authorized in\nan action upon such terms as it may specify.\n (e) Answering affidavits; record to be filed; default. The body or\nofficer shall file with the answer a certified transcript of the record\nof the proceedings under consideration, unless such a transcript has\nalready been filed with the clerk of the court. The respondent shall\nalso serve and submit with the answer affidavits or other written proof\nshowing such evidentiary facts as shall entitle him to a trial of any\nissue of fact. The court may order the body or officer to supply any\ndefect or omission in the answer, transcript or an answering affidavit.\nStatements made in the answer, transcript or an answering affidavit are\nnot conclusive upon the petitioner. Should the body or officer fail\neither to file and serve an answer or to move to dismiss, the court may\neither issue a judgment in favor of the petitioner or order that an\nanswer be submitted.\n (f) Objections in point of law. The respondent may raise an objection\nin point of law by setting it forth in his answer or by a motion to\ndismiss the petition, made upon notice within the time allowed for\nanswer. If the motion is denied, the court shall permit the respondent\nto answer, upon such terms as may be just; and unless the order\nspecifies otherwise, such answer shall be served and filed within five\ndays after service of the order with notice of entry; and the petitioner\nmay re-notice the
‹ Prev All New York sections Next ›
Lexace provides legal information, not legal advice, and no attorney–client relationship is created. Statute text is provided for general information and may not reflect the most recent amendments; verify against the official state code.