Special Proceedings

Question 1

what is a special proceeding?

Answer 1

A speedy, streamlined procedure, akin to motion practice, the purpose of which is to obtain a judgment as a final resolution of a dispute.

E.g., probate of a will; election disputes; summary proceeding by a landlord for eviction; dissolution of a corporation; habeas corpus; enforcement of an arbitration agreement; CPLR Article 78 proceeding

Question 2

What if someone accidentally brings a regular action by way of special proceeding?

Answer 2

• not grounds to dismiss

- court can convert the special proceeding into an action

Question 3

Procedure for special proceeding

Answer 3

• PETITIONER files a PETITION which constitutes the commencement of the proceeding
• Next, the petition and NOTICE OF PETITION must be served on the RESPONDENT by the usual means of service at least 8 days before the return date [OR 20 days for an Article 78 proceeding]
• the notice of petition advises the respondent to serve an answer and to appear on a specified return date for the hearing
• Affidavits are usually served in support of, and in opposition to, the petition. All pleadings and affidavits are submitted to the court on the return date for decision by the court. The dispute is decided in the same manner as summary judgment

Question 4

Article 78 Proceedings

Answer 4

• CPLR Article 78 authorizes a special proceeding for judicial review of ACTION (or INACTION) by state and local GOVERNMENT or QUASI-GOVERNMENTAL officers or bodies of any kind.
• respondent is usually a local government entity or officer.
• For mandamus purposes, a corp. traditionally qualifies as a quasi-government entity b/c a corps privilege of existence comes from the state

Question 5

4 grounds for an article 78 proceeding

HINT: Mr. McPC

Answer 5

1- Mandamus to Review
2- Mandamus to Compel
3- Prohibition
4- Certiorari

Question 6

Mandamus to Compel

Answer 6

Brought to compel the performance of an act required by law―an act as to which no discretion is involved

EXAMPLES- election official refuses to issue absentee ballots; president of a corp refuses to convene an annual meeting of s/h

Question 7

Prohibition

Answer 7

• A proceeding to stop a JUDICIAL OFFICER from exercising power that exceeds the officer’s lawful jurisdiction.
• The excess must be “GROSS;” routine judicial error is grounds for appeal, not prohibition proceeding
• EXAMPLES- A judge orders lawyers to take depositions of witnesses that neither party wishes to depose; after a not guilty verdict the judge grants the prosecutor’s request for a new trial in violation of double jeopardy

Question 8

Certiorari

Answer 8

• proceeding to challenge the results of a TRIAL-TYPE hearing conducted by an ADMINISTRATIVE AGENCY
• Trial-Type Hearing = one in which testimony was taken under oath with a right of cross-examination
• Persons with a vested property or quasi-property right, such as license-holders or tenured civil service employees, are entitled to a trial-type hearing PRIOR to divestiture or discharge
• Standard = the court must uphold the results if the agency’s determination was supported by SUBSTANTIAL EVIDENCE

Question 9

Mandamus to Review

Answer 9

• Proceeding to review any type of administrative action not covered by mandamus to compel, prohibition, or certiorari.
• Most often used to challenge an agency determination that was made w/o a trial-type hearing
• EX- (1) A probationary public employee was discharged from her position. (2) A homeowner applied for a zoning variance that was denied by the local zoning board. (3) Rambo applied for renewal of his gun permit, which was denied. (Agencies may determine such matters by investigation without a trial-type hearing because no vested rights are at stake.)
• Standard = court must uphold agency’s determination unless it was ARBITRARY and CAPRICIOUS

Question 10

Procedure for Article 78:

What court do you bring it in?

Answer 10

SUPREME COURT ONLY– NO OTHER COURT CAN ENTERTAIN

EVEN IF THE STATE IS THE RESPONDENT, WE DON’T FILE IN THE COURT OF CLAIMS

Question 11

Procedure for Article 78:

STATUTE OF LIMITATIONS?

Answer 11

4 months from the date the agency action becomes final and binding

Question 12

Procedure for Article 78:

RETURN DATE?

Answer 12

Papers in an article 78 proceeding must be served 20 days before the return date

Question 13

Procedure for Article 78:

Types of relief that may be sought in an Article 78 proceeding?

Answer 13

1- declaratory relief
2- injunctive relief
3- damages ONLY IF the damages are incidental to declaratory or injunctive relief