Special Actions and Proceedings

Question 0

Availability of Article 78

Answer 0

1. Compel a public body to perform a duty required by law
2. Prevent a body from acting in excess of its authority or jurisdiction
3. quasi-judicial decision not supported by substantial evidence, was arbitrary, capricious, or an abuse of discretion

Question 1

CPLR Article 78

Answer 1

Exclusive means of seeking review of government actions

Question 2

When Article 78 proceedings are NOT available

Answer 2

1. appeal is available
2. decision not final
3. test the validity of statutes -
   requires an action for declaratory judgement to be brought

Question 3

Commencement of Article 78

Answer 3

filing notice of petition or an order to show cause and a verified petition.

Answer must also be verified.

SoL is generally 4 months.
Court may extend if person is insane or an infant for a period of up to 2 years.

Question 4

Venue of an Article 78 proceeding

Answer 4

Any county where respondent made determination complained of,
or refused to perform the duty,
where material event took place, or
the principal office of the respondent is located.

Question 5

Conduct of an Article 78 proceeding

Answer 5

proceeding designed to give expedited review of government actions.

Must be at least 20 days after service of the motion unless a shorter time is allowed by the court.

Question 6

Relief available under an Article 78 proceeding

Answer 6

annul, confirm, or modify determination of government body.

May direct or prohibit action.

Restitution or damages must be incidental to injunctive relief sought.

Question 7

CPLR Article 4 - Generally

Answer 7

Sets procedural rules for special proceedings
except where rule or statute allows the proceeding to set different rules.

Disclosure available by leave of court except
requests for admissions always available.

Parties must rely on pleadings and affidavits otherwise.

Question 8

Article 4 Pleadings and Commencement

Answer 8

Action brought by petition (complaint)
Affidavits filed with the complaint.
Sufficiency judged considering supporting affidavit(s).
Respondent files answer and raises counter and cross claims
may not join parties without permission of court.
Petitioner may serve reply to answer with no counterclaim.
Further pleadings require leave of the court.

Question 9

Statute of Limitations for most special proceedings

Answer 9

Often very short.
timely service is critical.

Service by mail or publication is generally used as a result.

Question 10

Hearings under Article 4 - timing

Answer 10

not within 8 days of service.
Answer must be filed 2 days before the hearing
Petitioner can extend time to 7 days
IF he served respondent at least 12 days before the hearing.

Question 11

Article 4 Hearings

Answer 11

Conducted like motions within a regular trial - more or less.
Parties may demand a jury if a jury is available in such causes of action.
Not usually the case.

Question 12

Arbitration - Generally

Answer 12

Strong public policy favoring
Can be required when there is an agreement to arbitrate or when one party requests arbitration by special proceeding
Court must submit case for arbitration where there is a valid arbitration agreement unless SoL has run.
May be had on a specific issue.
Arbitrators cannot award punitive damages are not bound by substantive law unless parties agree otherwise.

Question 13

Notice of Intention to Arbitrate

Answer 13

A party serving demand for arbitration must specify:

1. Agreement pursuant to which arbitration is sought.
2. Address of serving party or representative
3. party served must apply to stay the arbitration in 20 days of being served or is precluded from objecting to arbitration on grounds of invalid arbitration agreement or application time was barred.

Question 14

Application to Stay Arbitration - grounds

Answer 14

no valid arbitration agreement exists or
application time is barred
he has neither participated in
nor been served an application to compel arbitration.
Provisions allowing parties to waive rights to a stay of arbitration are void.

Question 15

Arbitration Venue

Answer 15

agreement names a proper venue, the agreement is controlling.

Otherwise venue is proper in county where party requesting arbitration resides or does business.

If party does not reside or do business in state, any county is proper.

Question 16

Evidence in Arbitration

Answer 16

Parties have right to be heard, present evidence, and cross examine witnesses.

arbitrator can determine the case with evidence produced
even if a party fails to appear if properly notified.

Parties may waive any requirement of CPLR
waiver is found by the parties continuing arbitration without objection.
Right to be represented by attorney is cannot be waived.

Question 17

Application for a Modification of an Arbitration Award

Answer 17

20 days from delivery of award to apply in writing to arbitrators
Notice given to the other parties
Other parties have 10 days to respond

party has 90 days to apply to court for modification

Question 18

Conditions where a court will modify an arbitration award

Answer 18

1. Miscalculation describing property, persons, or things in award.
2. Award on matter not submitted to arbitration. Correction won’t affect merits of decision on issue submitted.
3. Award imperfect in form. does not affect merits of controversy.

Question 19

Vacatur - timing

Answer 19

90 days of delivery of award

party can apply to vacate the award

Question 20

Grounds for Vacating an Arbitration Award (2)

Answer 20

1. Award substantially prejudiced party by:
   a. Fraud, corruption or misconduct in procuring award
   b. partiality of the arbitrator
   c. arbitrator exceeded power
   d. proper procedures not followed and defects not waived
2. Award did not include a party whose rights were substantially prejudiced and the court finds:
   a. no valid arbitration agreement
   b. agreement was not complied with
   c. claim was barred by SoL

Question 21

Confirmation of an Arbitration Award

Answer 21

one year from delivery of award to have confirmed by court

failure to confirm renders the decision unenforceable

Question 22

Special Rules in Medical Malpractice Arbitration Cases

Answer 22

D force binding arbitration as to damages
by conceding liability even absent an agreement.
within 60 days of case being filed

Question 23

Mediation

Answer 23

May enter into by contract or court order.
Attempts to work out a compromise between the parties
produces no enforceable decision other than what parties agree to.