§ 7804.Procedure.

Subd (a) of this section makes article 4, which governs matters of procedure in special proceedings generally, applicable to a proceeding under this article. It eliminates the need to repeat here a number of provisions in CPA, article 78. Thus, the first two sentences of CPA § 1289, which required eight days’ notice of the application unless a shorter time was prescribed by an order to show cause, and which required that the petition and supporting papers be served with such notice or order, are covered by subdivisions (b) and (d) of § 403. The authorization of a reply in CPA § 1292 is covered by §§ 403(b) and 402. See also § 3011. Objections in point of law in special proceedings are governed by § 404, which was patterned after § 1293 in CPA article 78; and motions to supply defects in the record or to correct the pleadings are covered by § 405, which was patterned after § 1294 in CPA article 78. The remaining subdivisions of this section deal with matters of procedure that are unique to a proceeding under this article. Matters of procedure not regulated by either this article or article 4 or special statute will be governed by the same rules that govern procedure in actions, by virtue of § 103(b), which eliminates the need for CPA § 1306.

Subd (b) of this section is derived from part of CPA § 1287. The remainder of § 1287, which dealt with venue, is treated in § 506.

Subd (c) of this section parallels the language of subd (b) of § 403, dealing with special proceedings generally. A basic time period of twenty days has been provided. It seems to be the consensus of those concerned with CPA article 78 proceedings that the former period almost invariably required an adjournment and that the new period is more realistic.

Subd (d) of this section is based upon § 402, in the special proceeding article modified to incorporate the language of CPA § 1292 concerning replies.

The first sentence of subd (e) of this section is derived from part of CPA § 1291. Other parts of § 1291 are covered in the provisions on answering affidavits in the title on special proceedings. The latter article permits a “counterclaim” (i.e., a demand for relief by the body or officer) formerly prohibited by § 1291. Since the proceeding is before the court, determination of the propriety of cross-relief can easily be made. Moreover, the counterclaim may be severed if it will delay decision of the issues raised in the petition. See § 603. The second sentence of this subdivision covers the situation envisaged by CPA § 112. That section was a holdover from the pre-article 78 proceedings to review the determination of a body or officer. In the Throop Code it appeared, together with the other provisions relating to those proceedings, as § 2124; at that time it authorized an appellate court reviewing the determination of a body or officer to issue a writ of certiorari requiring the body or officer to supply any “diminution, variance, or other defect, in the record or other papers.” The authors of the civil practice act substituted the use of an ordinary order for the same purpose and removed the section to its position in the article governing “Mistakes, Defects and Irregularities,” while the rest of the provisions governing certiorari, mandamus and prohibition were placed in former articles 78–80. See Report of the Joint Legislative Committee on the Simplification of Civil Practice 111 (1919). The 1937 revision which produced CPA article 78 took no account of § 112. See 3 NY Jud Council Rep 129–98 (1937). According to Throop’s note the section served a purpose analogous to that of the provision permitting a respondent in an ordinary appeal to transmit the papers to the appellate court, if the appellant failed to do so, and tax the expense thereof as disbursements. See Code Civ Proc § 2124, note (Throop ed 1880); id. § 1315; cf. CPA § 607-d. Apart from the question of costs, there is no problem of “diminution, variance, or other defect” under former appeals practice or article 55, since both parties have equal access to the papers and there is ample provision for settlement of a transcript of the proceedings below. See rules 5525, 5527 and 5530. But to the extent that this may not be true where the proceeding was before a body or officer, there may be a need for a procedure to compel the body or officer to supply defects in the record. In former article 78, § 1294, allowing either party to “apply to the court to correct any omissions or defects in the papers,” would take care of this problem and therefore CPA § 112 is unnecessary. But CPA § 1294 has been omitted from this article and consequently this subd requires this sentence. The third sentence of the subdivision is derived from part of CPA § 1296. While it seems to state the obvious, it is included to avoid the result reached before its adoption when statements of fact in the return were held binding on a petitioner in certiorari. See 3 NY Jud Council Rep 164–67 (1937).

Subd (f) of this section is based upon subd (a) of § 404 in the special proceeding article, modified by requiring that the respondent be given an opportunity to answer if the motion is denied. Under § 404, the court may deny such an opportunity if the objection in point of law is overruled.

Subd (g) of this section follows former practice as provided for in the paragraph following subd 7 of CPA § 1296.

Subd (h) of this section is derived from CPA § 1295. Procedure on the trial is governed by the applicable provisions of articles 40 through 45. The statement that trial is to be had “forthwith,” includes a jury trial where one is required. Article 4, applicable to special proceedings generally, so indicates. Cf. § 2218, applicable to motions. There is a right to trial by jury in proceedings in the nature of mandamus (3 NY Jud Council Rep 138, 168–69 (1937); 1 Benjamin, Administrative Adjudication in New York 358–59 (1942)) and on certain issues in proceedings in the nature of certiorari (3 NY Jud Council Rep 188 (1937)) but not in proceedings in the nature of prohibition. Id. at 167. The subdivision does not state in what actions jury trial is available, or what questions are to be submitted to the jury since these are matters which are governed by historical rights under the writs. The proper scope of a jury, however, is still not wholly resolved by case law. See 1 Benjamin, op cit supra at 355–58. The second sentence of this subdivision is required because a proceeding against a justice of the Supreme Court, which may raise a question of fact, must be brought in the Appellate Division. See § 506; CPA § 1287.

Add, L 1962, ch 308, § 1, eff Sept 1, 1963; amd, L 1965, ch 814, § 1, eff Sept 1, 1965; L 1972, ch 752, § 3; L 1981, ch 502, § 2, eff July 15, 1981; L 1981, ch 580, § 1; L 1983, ch 840, § 7; L 1986, ch 355, § 13, eff July 17, 1986; L 1987, ch 384, § 1, eff July 23, 1987; L 1990, ch 575, § 1, eff Jan 1, 1991; L 1993, ch 202, § 1, eff July 6, 1993.