Leave of court shall be required for disclosure except for a notice under section 3123. A notice under section 3123 may be served at any time not later than three days before the petition is noticed to be heard and the statement denying or setting forth the reasons for failing to admit or deny shall be served not later than one day before the petition is noticed to be heard, unless the court orders otherwise on motion made without notice. This section shall not be applicable to proceedings in a surrogate’s court, nor to proceedings relating to express trusts pursuant to article 77, both of which shall be governed by article 31.
§ 408.Disclosure
Article 4. Special Proceedings · Last amended 1976 · Last verified July 21, 2026
In one sentenceCPLR 408 requires a party in a special proceeding to get leave of court before taking disclosure, with one exception for a notice to admit, and it exempts surrogate's court proceedings and Article 77 express-trust proceedings from its reach entirely.
Full Text of CPLR 408
Plain-English Summary
Disclosure in an ordinary action runs largely on the parties' own initiative under CPLR Article 31. A special proceeding flips that default: CPLR 408 requires leave of court before a party may take any disclosure at all. That restriction fits the proceeding's purpose — resolving a discrete question quickly, on papers, rather than opening the broad fact-gathering process an action allows.
The rule carves out one specific exception. A notice under CPLR 3123 — a notice to admit — needs no leave of court. It may be served any time up to three days before the petition is noticed to be heard, and the responding statement, denying the matters or setting out the reasons for failing to admit or deny them, is due no later than one day before the hearing, unless the court orders otherwise.
CPLR 408 also draws a firm boundary around its own reach. It doesn't apply to proceedings in a surrogate's court, and it doesn't apply to proceedings relating to express trusts under Article 77. Both of those instead follow the standard disclosure rules in Article 31, meaning the parties there get the broader, party-driven disclosure process rather than the restricted, leave-of-court approach CPLR 408 sets for special proceedings generally.
Frequently Asked Questions
Do I need the court's permission to take disclosure in a special proceeding?
Yes, with one exception. CPLR 408 requires leave of court for disclosure generally, but a notice to admit under CPLR 3123 doesn't need prior court approval.
Can I serve a notice to admit without asking the court first?
Yes. CPLR 408 exempts a notice under CPLR 3123 from the leave-of-court requirement that otherwise governs disclosure in a special proceeding.
How late can a notice to admit be served before the hearing?
No later than three days before the petition is noticed to be heard. The response denying or explaining the failure to admit or deny is due no later than one day before the hearing, absent a court order to the contrary.
Does CPLR 408 apply to surrogate's court cases?
No. The rule states it doesn't apply to proceedings in a surrogate's court, which instead follow the standard disclosure rules in CPLR Article 31.
What disclosure rules apply to Article 77 express-trust proceedings?
Article 31's standard disclosure rules, not CPLR 408's leave-of-court restriction. CPLR 408 expressly excludes proceedings relating to express trusts under Article 77.
Advisory Committee Notes
This section is contrary to former law. See CPA § 308; RCP 121. It is also contrary to the provisions covering actions in the new CPLR, which allow all disclosure to be obtained on notice. CPLR § 3102(b). The requirement of an order for disclosure is designed to preserve the summary nature of a special proceeding. To allow disclosure on notice before the hearing, even with the five-day notice provided for in RCP 121, would almost certainly extend the eight-day notice of petition period. Since a hearing always involves the possibility of a summary determination, the policy of new CPLR § 3214(b), staying disclosure upon service of a notice of motion for summary judgment, applies here. In the event that the court orders a trial, it could include a provision for disclosure in its order. The section excepts requests for admissions from the requirement of obtaining leave of court and provides a speedy procedure for utilizing such requests in special proceedings.
Amendment History
Formerly Rule 408, add, L 1962, ch 308; amd, L 1962, ch 318, § 2; L 1964, ch 477; L 1976, ch 193, § 1, eff Sept 1, 1976.
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: discovery in special proceeding New Yorknotice to admit special proceeding NYleave of court disclosure special proceedingCPLR 408 disclosuresurrogate's court discovery rules NY