K. Special Proceedings

Question 1

What is Special Proceeding?*

Answer 1

Establish right/enforce obligation in civil matter in ‘expedited’ fashion

Normally against Body/Officer

Question 2

What is required for commencement of Special Proceeding?*

Answer 2

1) Statutory authorisation
2) Article 78 Petition

3) Either;
3a) Notice of Petition; or
- Specifies time + place of Petition return date
- Must identify supporting affidavits
3b) Order to show cause
- Specifies date + place of hearing
- Judicial Order

Question 3

On what basis may Respondent object to special proceeding?

Answer 3

Point of law

• Answer
• Motion to dismiss

Question 4

What is Article 78 proceeding?*

Answer 4

Judicial review of most administrative action in NY
- Matters recognised at common law

Issues include;

• Body/Officer’s failure to perform legal duty
• Body/Officer proceeding without/in excess of jurisdiction
• Determination made in violation of lawful procedure/affected by error of law/arbitrary
• Determination made resulting from hearing

Question 5

What is required for Article 78 proceeding?

Answer 5

1) Commence in Supreme Court

2) File ‘verified’ Petition with Clerk
- Supporting affidavits

3) Within 4 months after determination to review becomes final and binding

Question 6

What may be included in objections in Answer/Motion to Dismiss?

Answer 6

Points of law

Question 7

When may Court do if there is/NO triable issue of fact raised in Art 78 Petition?

Answer 7

Trial issue of fact raised
- Court may try Petition

NO trial issue of fact raised

• Court should decide case on papers
• Court should grant judgment as matter of law for prevailing Party