(a) By whom made. A person illegally imprisoned or otherwise restrained in his liberty within the state, or one acting on his behalf or a party in a child abuse proceeding subsequent to an order of the family court, may petition without notice for a writ of habeas corpus to inquire into the cause of such detention and for deliverance. A judge authorized to issue writs of habeas corpus having evidence, in a judicial proceeding before him, that any person is so detained shall, on his own initiative, issue a writ of habeas corpus for the relief of that person.
§ 7002.Petition.
Article 70. Habeas Corpus · Last amended 2021 · Last verified July 21, 2026
In one sentenceCPLR 7002 says who may petition for a writ of habeas corpus, which court or judge the petition must be brought to, and exactly what facts the verified petition or accompanying affidavit must state.
Full Text of CPLR 7002
(b) To whom made. Except as provided in paragraph five of this subdivision, a petition for the writ shall be made to:
1. the supreme court in the judicial district in which the person is detained; or 2. the appellate division in the department in which the person is detained; or 3. any justice of the supreme court; or 4. a county judge being or residing within the county in which the person is detained; where there is no judge within the county capable of issuing the writ, or if all within the county capable of doing so have refused, the petition may be made to a county judge being or residing within an adjoining county.
5. in a city having a population of one million or more inhabitants, a person held as a trial incarcerated individual in a city detention institution shall petition for a writ to the supreme court in the county in which the charge for which the incarcerated individual is being detained is pending. Such incarcerated individual may also petition for a writ to the appellate division in the department in which he is detained or to any justice of the supreme court provided that the writ shall be made returnable before a justice of the supreme court held in the county in which the charge for which the incarcerated individual is being detained is pending.
(c) Content. The petition shall be verified and shall state, or shall be accompanied by an affidavit which shall state, 1. that the person in whose behalf the petition is made is detained, naming the person by whom he is detained and the place of detention if they are known, or describing them if they are not known; where the detention is by virtue of a mandate, a copy of it shall be annexed to the petition, or sufficient reason why a copy could not be obtained shall be stated;
2. the cause or pretense of the detention, according to the best knowledge and belief of the petitioner;
3. that a court or judge of the United States does not have exclusive jurisdiction to order him released;
4. if the writ is sought because of an illegal detention, the nature of the illegality;
5. whether any appeal has been taken from any order by virtue of which the person is detained, and, if so, the result;
6. the date, and the court or judge to whom made, of every previous application for the writ, the disposition of each such application and of any appeal taken, and the new facts, if any, presented in the petition that were not presented in any previous application; and 7. if the petition is made to a county judge outside the county in which the person is detained, the facts which authorize such judge to act.
Plain-English Summary
CPLR 7002 opens the habeas corpus proceeding itself, starting with who can bring it. The person illegally imprisoned or otherwise restrained can petition, but so can someone acting on that person's behalf -- a relative, an attorney, anyone stepping in for someone who cannot easily petition on their own -- and so can a party in a child abuse proceeding that followed a family court order. No advance notice to the detaining party is required to file the petition. And the statute does not wait passively for someone to ask: if a judge authorized to issue habeas writs learns, from evidence in a judicial proceeding before that judge, that a person is illegally detained, the judge must issue the writ on their own initiative.
Subdivision (b) directs the petition to the right forum. It can go to the supreme court in the judicial district where the person is detained, to the appellate division in the department covering that location, to any justice of the supreme court, or to a county judge in the county of detention -- and, if no county judge there is able or willing to act, to a county judge in an adjoining county. New York City carries its own rule: a person held pretrial in a city jail in a city of a million or more people must petition the supreme court in the county where the pending charge sits, though that detainee can still reach the appellate division or any supreme court justice, so long as the writ is made returnable before a justice in the county handling the charge.
Subdivision (c) is the checklist for what the verified petition, or an affidavit attached to it, has to say: who is detained and by whom and where, with a copy of the detaining mandate if one exists; the claimed cause of the detention; a statement that no federal court or judge has exclusive jurisdiction to order release; the nature of the claimed illegality if that is the basis for the writ; the outcome of any appeal already taken from the order behind the detention; the history of every prior habeas application, including what became of it and what new facts this petition raises that the earlier one did not; and, when the petition goes to an out-of-county judge, the facts that let that judge act.
Frequently Asked Questions
Who can file a habeas corpus petition in New York?
The person illegally detained, someone acting on that person's behalf, or a party in a child abuse proceeding brought after a family court order.
Do you need to notify the detaining party before filing a habeas corpus petition?
No, CPLR 7002 allows the petition to be filed without notice.
Which court should a habeas corpus petition be filed with?
The supreme court in the judicial district of detention, the appellate division for that department, any supreme court justice, or a county judge in the county of detention -- or an adjoining county if no county judge there is available.
Is there a special rule for pretrial detainees held in New York City jails?
Yes, in a city of a million or more people, a person held pretrial in a city detention institution must petition the supreme court in the county where the pending charge is being prosecuted, though the appellate division or any justice may also be reached if the writ is made returnable in that county.
What must a habeas corpus petition include?
Who is detained and by whom and where, the cause of the detention, a statement that no federal court has exclusive jurisdiction, the nature of any claimed illegality, the status of any appeal, and the history and outcome of any prior habeas applications.
Can a judge start a habeas corpus proceeding without a petition being filed?
Yes, a judge authorized to issue the writ must do so on their own initiative upon learning, from evidence in a judicial proceeding before that judge, that someone is being illegally detained.
Do you have to disclose past habeas petitions when filing a new one?
Yes, the petition must state the date and forum of every prior application for the writ, its disposition, any appeal taken, and any new facts this petition raises that weren't presented before.
Advisory Committee Notes
The first sentence of subd (a) of this section is derived from CPA § 1230. The reference to “one acting on . . . behalf” of the prisoner is derived from CPA § 1232. The restrictions on issuance of the writ contained in CPA § 1230 through its reference to CPA § 1231 have been omitted from this section, since they are separately stated in § 7003(a). Throughout this article the single word “detained” is substituted for the two words “imprisoned” or “restrained” of the former statutes. All three words are used in this subdivision, however, to make it clear that no change in former meaning is intended. CPA § 1233 has been deleted. It was formerly a general provision designating the Attorney General and district attorney as persons to make application for any one of a number of state writs that might be required in actions in which the state was interested. Code Civ. Proc. § 1993. With the abolition of most state writs by the civil practice act (see CPA §§ 1283, 1313, 1341), the provision was incorporated into the article which dealt solely with habeas corpus and certiorari to inquire into the cause of detention, where it had no more effect than to permit the production of a prisoner as a witness in an action or special proceeding. Provisions for that procedure are already found in CPA §§ 415 through 420 and in § 2302(b). The second sentence of this subdivision is derived from CPA § 1241. The term “judge” encompasses justices of the Supreme Court. See Gen Constr Law § 26. The subd broadens the scope of CPA § 1241 by permitting a judge authorized to issue writs of habeas corpus, other than a Supreme Court justice, to do so without application, if it appears in a proceeding before him that someone is illegally detained anywhere in the state. Under CPA § 1241, a judge other than a Supreme Court justice might not have issued a writ of habeas corpus for the relief of a prisoner outside the county in which the judge resided; special provision was made for such relief in an adjoining county, however, in situations where there was no judicial officer who was capable of issuing the writ residing in the county where the prisoner was restrained. CPA § 1232; cf. subd (b). The slight increase, in the powers of judges other than Supreme Court justices, will not be open to abuse: there will be notice to interested parties, a proper return and a full hearing of the cause. Cf. Polo v D’Achille, 157 App Div 300, 142 NY Supp 511 (2d Dep’t 1913). As the Court of Appeals pointed out in the leading case of People ex rel. Tweed v Liscomb, 60 NY 559, 567 (1875):
There is no occasion to be alarmed, or to be frightened out of our propriety, lest, by reason of the number of magistrates to whom this great power has been committed, the judgments of superior courts will be nullified, and judicial proceedings rendered nugatory, so far as they interfere with personal liberty. The power has existed in many inferior magistrates for more than three-fourths of a century, and the laws and judgments of courts have been executed without unseemly interruption by means of this writ of liberty. . . .
Subd (b) of this section is derived from the first paragraph and the three numbered subdivisions of CPA § 1232. Minor language changes have been made, but, with one exception, no change in meaning is intended. That part of subdivision 3 of CPA § 1232 which permitted a petition for habeas corpus to be made to a specified officer who “resides” in a county adjoining the one in which the prisoner was detained has been retained by use of the phrase “judge present in an adjoining county.” The first part of the former subdivision, which authorized application to an officer “being or residing” in the county where the prisoner was detained has been limited to a judge “in” that county. Officers authorized to perform the duties of a “justice of the supreme court at chambers”—the former phrase of subd 3 of CPA § 1232—include County Court judges. CPA § 77. They have been referred to explicitly in view of article 22 which abolishes the distinction between powers of judges in court and at chambers. See notes to § 2212, infra.
Subd (c) of this section is substantially the same as CPA § 1234. It also includes, as subparagraph 7, the provision of the last paragraph of CPA § 1232, which has been simplified in language, with no change in meaning intended. The specific authorization in CPA § 1232 for an officer specified in that section to require proof, outside the petition, that an application for the writ may properly be made to him is omitted as unnecessary. There is also no need for an explicit requirement such as that found in CPA § 1232 that the petition be in writing, since it is implicit in this subdivision. Subd 6 of CPA § 1234 has been deleted in view of the abolition of the writ of certiorari to inquire into the cause of detention. That part of subd 7 of CPA § 1234 which required information about appeals taken from the mandate under which a prisoner was confined has been replaced by subparagraph 5; the portion dealing with information about appeals from orders made upon prior applications for writs of habeas corpus is covered by subparagraph 6. A requirement that the dates of the prior applications be stated in the petition has been included in subparagraph 6. The term “mandate” as used in this subdivision and the remainder of the article is broad enough to include any “writ, process or other written direction” including an order or judgment. Gen Constr Law § 28-a.
Amendment History
Add, L 1962, ch 308, eff Sept 1, 1963; amd, L 1963, ch 536, eff Sept 1, 1963; L 1969, ch 264, eff June 1, 1969; L 1971, ch 803, eff July 1, 1971; L 1986, ch 355, § 12, eff July 17, 1986; L 2021, ch 322, § 251, effective August 2, 2021.
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
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