(a) By respondent. 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 may 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.
§ 404.Objections in point of law.
Article 4. Special Proceedings · Last amended 1993 · Last verified July 21, 2026
In one sentenceCPLR 404 lets a respondent raise a legal objection to a petition in the answer or by a pre-answer motion to dismiss, and lets a petitioner raise the same kind of objection to new matter in the answer through the reply or a motion to strike.
Full Text of CPLR 404
(b) By petitioner. 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.
Plain-English Summary
Subdivision (a) gives the respondent two ways to raise a legal objection to the petition: set it out in the answer, or bring it as a motion to dismiss made on notice within the time allowed for the answer. If the court denies that motion, it may still let the respondent answer, on whatever terms it finds just. Unless the order says otherwise, the answer is then due within five days after service of the order with notice of entry. From there, either side can push the case back onto the calendar — the petitioner may re-notice the matter for hearing on two days' notice, or the respondent may re-notice it by serving the answer with seven days' notice.
Subdivision (b) mirrors that structure for the petitioner. If the answer contains new matter — an affirmative defense or a counterclaim, for instance — the petitioner can object to it in point of law by raising the objection in the reply or by moving to strike it on the day the petition is noticed or re-noticed to be heard.
Both routes fold the objection into the proceeding's existing calendar rather than opening a separate motion track. A denied motion doesn't stall the case for months the way a motion to dismiss can in an ordinary action; it produces a short, fixed window for the answer and a quick path back to the hearing date.
Frequently Asked Questions
How does a respondent move to dismiss a petition in a special proceeding?
By making a motion on notice within the time allowed for the answer, or by raising the objection directly in the answer itself. CPLR 404(a) allows either approach.
What happens if my motion to dismiss the petition is denied?
The court may still permit an answer, on terms it considers just. Unless the order specifies otherwise, that answer is due within five days after service of the order with notice of entry, and either party can then re-notice the hearing.
Can a petitioner object to a defense raised in the answer?
Yes. CPLR 404(b) lets the petitioner raise an objection in point of law to new matter in the answer, either in the reply or by a motion to strike made on the day the petition is noticed or re-noticed to be heard.
How much notice do I get to re-notice a hearing after a motion is decided?
The petitioner may re-notice the matter on two days' notice. The respondent may re-notice it by serving the answer with seven days' notice.
Is CPLR 404 the same as a motion to dismiss under CPLR 3211?
It serves a similar function inside the special proceeding framework, letting a respondent challenge the petition on legal grounds before or alongside the answer, but it runs on the shorter timetable and re-notice mechanics that CPLR 404 sets out for special proceedings specifically.
Advisory Committee Notes
Subd (a). This section is patterned upon CPA § 1293 in the CPA article governing proceedings against a body or officer; the section makes it applicable to special proceedings generally. It includes the 1959 amendments proposed by the New York State Bar Association Committee on Administrative Law. NY Laws 1959, c 364. No change in meaning is intended but the language has been conformed to the terminology of the new CPLR. For example, the time limitation of the first sentence of subd (a) is the same as in CPA § 1293 since a motion on notice is “made” when notice of the motion is served.
The section provides a method of summary disposition of the proceeding analogous to the motions to dismiss and for summary judgment that are available in actions. It provides special short time limitations, however, which are particularly suited to the expeditious handling of special proceedings.
In subd (b), corresponding to the last paragraph of CPA § 1293, the words “a defense” are omitted since under the proposed rules the answer may contain, and the motion may be directed toward, a counterclaim as well as a defense. The words “on the face thereof” are also omitted, in accordance with the general policy against testing legal sufficiency on the basis of pleadings alone.
Amendment History
Add, L 1962, ch 308, eff Sept 1, 1963; amd, L 1993, ch 202, § 2, eff July 6, 1993.
Source & verification. Provision text, History, and Advisory
Committee Notes are reproduced verbatim from the Consolidated Laws of New York.
Last verified July 21, 2026.
· Official source
Also known as: motion to dismiss petition New Yorkobjection in point of law special proceedingrespondent answer special proceeding NYCPLR 404 objectionsreply to new matter special proceeding