special proceedings/ ADR/ Article 78 Flashcards
overview
Speedy, streamlined, procedure to obtain judgment as final resolution of dispute.
- Types of Actions: Pursuit of remedy by special proceeding requires specific statutory authorization.
a) Example: probate of will; election disputes; summary proceeding by landlord for eviction; dissolution of corporation; habeas corpus; enforcement of arbitration agreement; CPLR Article 78 proceeding.
can use special proceeding to obtain a stay of arbitration
- Improperly Files Special Proceeding: court will convert into regular action—no dismissal
a) Vice-Versa—if you mistakenly file regular action, court will convert into special proceedings. - Procedure:
a) Petitioner files a petition—not “plaintiff,” and not “complaint”—which commences special proceeding.
b) Petition and notice of petition served on Respondent—service made in same way as serving process—must assert jurisdiction over the respondent);
c) Notice informs respondent to serve an answer and appear on specified return date for hearing
1) Return Date: can be no sooner than 8 days—20 days in Article 78—from service of process.
(i) Immediate Relief: If P cannot wait 8 days → initiate special proceeding by Order to Show Cause to accelerate return date.
d) Affidavits submitted to court on Return Date for decision; court decides dispute in same manner as SJ.
arbitration
Private, contract, for binding resolution of disputes; arbitrators not bound by substantive law/rules of evidence; Courts have limited judicial review authority. NY POLICY FAVORS ARBITRATION!
a) Judicial Intervention Prior to Arbitration
1) Two Ways to Activate the Courts – Triggers decision of threshold issues by court:
(i) Pre-Action: Party files Notice of Intention to Arbitrate → burden on opponent to commence Special Proceeding for Stay of Arbitration within 20 days (very short!), else: waiver.
(ii) Pending Action: P sues D, D Motion to Stay Action and to Compel Arbitration
2) Threshold Issues: Courts will decide that arbitration should proceed when:
(a) Agreement to Arbitrate—if (a) in writing (but not signed) and (b) clear, explicit, and unequivocal (right to arbitrate need not be mutual)
(b) Scope of Arbitration Clause—if broad clause, court just decides conditions precedent and SOL.
(c) Arbitration Clause Presumed Valid—only challenge as invalid when clause itself induced by fraud, duress, coercion, or contrary to public policy—validity of arbitration clause is severable from validity of overall K.
(i) If Clause Valid → arbitrator (not court) determines validity of overall contract
(d) Complied with Express Condition Precedents—any condition not fulfilled before arbitration?
(e) Statute of Limitations—court decides
b) Judicial Review of Arbitration Awards: three (very narrow) grounds to vacate arbitration award:
1) Corruption, fraud, or misconduct in arbitration proceeding
2) Bias of arbiter who was chosen to be neutral; or
3) Arbitrator exceeded powers—hard, unless arbitrator awards punitive damages (no power in NY to award punitive damages in arbitration)
other forms of ADR in NY: mediation, neutral evaluation, and summary jury trial
a) Usually Nonbinding—just tries to promote voluntary settlement (unlike arbitration)
b) No Statutory Rules—no threshold issues or vacating rules as exist for arbitration
c) Mediation: Non-binding process where neutral mediator attempts to facilitate settlement; presenting practical concerns and merits of each side’s positions; parties can control confidentially and waiver through mediation agreement
d) Neutral Evaluation: Non-binding process where neutral expert in subject matter receives short presentation on merits and predicts how a court would decide.
e) Summary Jury Trial: Agreement with court, where parties present condensed version of real trial to real judge and real jury (one day, relaxed rules of evidence, witnesses). Jury renders verdict and parties can ask jury questions. At parties’ choice, verdict is usually non-binding, so used solely for voluntary settlement.
art 78 proceedings
CPLR art 78 authorizes a special proceeding for judicial review of action/inaction by governmental or quasi-governmental (corporation) in NY Supreme Court (exclusive jdx—even if State is involved—not Court of Claims, because not tort/contract).
-SC has exclusive jx over Art 78 proceedings
- SOL: only 4-months after action is final/binding (short)
- Return Date: 20 days before return date (instead of the usual 8 days)
- Relief: usually (1) declaratory or (2) injunctive, AND (3) money damages incidental to main relief sought
1) Example: Article 78 proceeding to be reinstated as cop (injunctive) and back-pay (incidental damages). - Grounds: four grounds
a) Mandamus to Compel: compel performance where no discretion involved (ie to compel performance of an act required by law)
1) Example: force clerk to issue marriage license; corporate officer to convene annual SH meeting.
b) Prohibition: (rare) stop judicial officer from grossly improper exercise of jurisdiction
1) Example: in criminal matter, D acquitted and judge grants new trial in violation of double jeopardy
2) Example: in civil case, judge can’t force parties to depose particular witnesses (interfere with discovery)
c) Certiorari: (more common) challenge “trial-type” administrative agency hearing regarding persons vested or quasi-property rights prior to divestiture
1) Standard: must uphold if agency’s determination supported by “substantial evidence.”
2) Example: medical license
d) Mandamus to Review: challenge agency determination made without trial-type hearing—catch-all for any administrative action not covered by the others.
1) Standard: must uphold agency’s determination unless “arbitrary and capricious.”
2) Example: zoning variances, gun permits, driver’s license.
actions against municipalities for injuries resulting from defect in or poor state of repair for street or highway
no action unless village clerk was actually given written notice of defect or poor repair and village failed or neglected to repair the defect within a reasonable time
