(a) Notice before hearing. Where the detention is by virtue of a mandate, the court shall not adjudicate the issues in the proceeding until written notice of the time and place of the hearing has been served either personally eight days prior to the hearing, or in any other manner or time as the court may order, 1. where the mandate was issued in a civil cause, upon the person interested in continuing the detention or upon his attorney; or, 2. where a person is detained by order of the family court, or by order of any court while a proceeding affecting him or her is pending in the family court, upon the judge who made the order. In all such proceedings, the court shall be represented by the attorney-general; or, 3. in any other case, upon the district attorney of the county in which the person was detained when the writ was served and upon the district attorney of the county from which he was committed.
§ 7009.Hearing.
Article 70. Habeas Corpus · Last amended 2007 · Last verified July 21, 2026
In one sentenceCPLR 7009 sets the notice, procedure, and flexibility for a habeas corpus hearing -- requiring advance notice to interested parties when detention rests on a mandate, letting the detained person contest the return under oath, and directing a summary hearing with room for bail, parole, or continued custody pending decision.
Full Text of CPLR 7009
(b) Reply to return. The petitioner or the person detained may deny under oath, orally or in writing, any material allegation of the answering affidavits or allege any fact showing that the person detained is entitled to be discharged.
(c) Hearing to be summary. The court shall proceed in a summary manner to hear the evidence produced in support of and against the detention and to dispose of the proceeding as justice requires.
(d) Sickness or infirmity of person detained. Where it is proved to the satisfaction of the court that the person detained is too sick or infirm to be brought to the appointed place, the hearing may be held without his presence, may be adjourned, or may be held at the place where the prisoner is detained.
(e) Custody during proceeding. Pending final disposition, the court may place the person detained in custody or parole him or admit him to bail as justice requires.
Plain-English Summary
CPLR 7009 governs what happens once the return is in. Where the detention rests on a mandate, the court cannot decide the case until written notice of the hearing's time and place has gone out at least eight days beforehand -- or on whatever other schedule the court sets -- to whoever has an interest in keeping the detention in place: the person or attorney behind a mandate issued in a civil matter, the family court judge who ordered a detention connected to a family court proceeding (with the attorney general representing the court in that scenario), or the district attorney of the county where the person was detained and the county that committed them, in other cases.
Once notice has gone out and the return is filed, the detained person or the petitioner can respond under oath -- orally or in writing -- denying any material fact in the return or raising any fact that supports discharge. The hearing itself is meant to move quickly: the court hears the evidence for and against the detention in summary fashion and disposes of the case as justice requires, instead of through the extended discovery and motion practice of an ordinary civil action.
Section 7009 also builds in flexibility for practical complications. If the detained person is too sick or infirm to be brought to the hearing, the court can proceed without them, adjourn the hearing, or hold it at the place of detention instead. And while the case is pending, the court is not limited to an all-or-nothing choice between custody and discharge -- it can place the detained person in custody, parole them, or admit them to bail as justice requires.
Frequently Asked Questions
Who must receive notice before a habeas corpus hearing on a mandate-based detention?
Depending on the type of case, the person or attorney behind a civil mandate, the family court judge who ordered a related detention, or the district attorney of the counties where the person was detained and committed.
How much advance notice is required for a habeas corpus hearing?
At least eight days, served personally, unless the court orders a different manner or time.
Can the detained person dispute the facts in the return?
Yes, the petitioner or detained person may deny under oath, orally or in writing, any material allegation in the return, or allege facts supporting discharge.
Is a habeas corpus hearing conducted like a full civil trial?
No, the court proceeds in a summary manner, hearing the evidence for and against the detention and disposing of the case as justice requires.
What happens if the detained person is too sick to attend the hearing?
The court can hold the hearing without that person present, adjourn it, or hold it at the place where they are detained.
What can the court do with the detained person while the habeas proceeding is pending?
Keep them in custody, parole them, or admit them to bail, as justice requires.
Advisory Committee Notes
(See also Advisory Committee notes preceding § 7001, under subheading “Hearing generally.”).
This section deals only with those aspects of the hearing which are unique to the writ of habeas corpus. Provisions governing special proceedings generally are contained in article 4. Consequently, CPA § 1268, which applied provisions relating to actions to habeas corpus proceedings, has been omitted. CPA § 1247, which dealt with appearance of parties at the hearing, is also deleted. See also § 7001. Matters concerning the disposition of the proceeding after hearing of the evidence are considered in § 7010.
Subd (a) of this section is the same as CPA § 1258, except for minor language changes which do not change meaning. It seeks to assure that those interested in upholding the validity of a person’s detention are given notice of any challenge to that detention by way of habeas corpus. The final paragraph of CPA § 1258 is covered by § 7011. Normally, notice of issuance of the writ is personally served upon the prescribed persons. Where personal service cannot be made, however, the court may authorize service by registered mail. See 21 Carmody-Wait, Cyclopedia of New York Practice 51–55 (1956). The language of the former provision has been changed to clarify any doubt about whether notice may be served before there has been a return to the writ. “[I]t is permissible practice, where the prisoner is known to be held by virtue of a mandate, to give immediate notice. This practice is embraced within the language of the section. . . .” Id. at 54.
Subd (b) of this section is based upon the first sentence of CPA § 1259. The term “reply” is substituted for “answer” in accordance with § 402. This subdivision permits either the prisoner or a person who has petitioned on his behalf to reply to the answering affidavit. No reason can be seen for restricting the applicability of the provision to the prisoner. In People ex rel. Hubert v Kaiser, 206 NY 46, 50, 99 NE 195, 196 (1912), although the Court of Appeals indicated that the return should have been answered by the prisoner rather than the petitioner, it determined the issues in dispute on the petitioner’s answer. Permitting the reply to be made either orally or in writing is in keeping with actual practice. See 21 Carmody-Wait, Cyclopedia of New York Practice 64 (1956).
Subd (c) of this section embodies the first clause of CPA § 1251 and the second sentence of CPA § 1259. It emphasizes the need for speed. Since the hearing is summary in nature, rules of evidence are not controlling. Matter of Heyward, 1 Sandf 701, 704 (NY Sup Ct 1848); 21 Carmody-Wait, Cyclopedia of New York Practice 106 n 4 (1956).
Subd (d) of this section embodies the substance of CPA § 1260. It is based upon the provision found in Illinois (Ill Rev Stat c 65, § 14 (1955)), and allows the court or judge handling the proceeding to make the most just disposition possible where the prisoner was required by the writ to be present but is too sick or infirm to attend the hearing at the prescribed place.
Except for minor language changes, subd (e) of this section is the same as CPA § 1257. The last part of CPA § 1249, which required that a prisoner brought before a court or judge by an officer other than the one to whom the writ was directed remain in the custody of that officer, has been changed to give the court discretion to fix custody. Normally, the sheriff’s office in the county where the proceedings are held would be equipped to maintain custody of the prisoner. The power to “parole him or admit him to bail” has been explicitly stated in order to make clear that the court has the broadest possible discretion to protect persons who claim to be illegally detained.
Amendment History
Add, L 1962, ch 308, eff Sept 1, 1963; amd, L 1963, ch 532, eff Sept 1, 1963; L 2007, ch 40, § 1, eff May 29, 2007.
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: CPLR 7009 habeas corpus hearinghabeas corpus hearing notice requirement NYNew York habeas corpus bail pending hearing