New York Civil Practice
Law & Rules

NYCPLR Article 4

SPECIAL PROCEEDINGS

401. Parties.
402. Pleadings.
403. Notice of petition; service; order to show cause.
(a) Notice of petition.
(b) Time for service of notice of petition and answer.
(c) Manner of service.
(d) Order to show cause.
404. Objections in point of law.
(a) By respondent.
(b) By petitioner.
405. Correction of defects in papers.
(a) Motion to correct.
(b) Time limits; pleading after disposition.
(c) Petitioner`s motion.
406. Motions.
407. Severance.
408. Disclosure.
409. Hearing.
(a) Furnishing of papers; filing.
(b) Summary determination.

410. Trial.
411. Judgment.

S 401. Parties. The party commencing a special proceeding shall be styled the petitioner and any adverse party the respondent. After a proceeding is commenced, no party shall be joined or interpleaded and no third-party practice or intervention shall be allowed, except by leave of court.

S 402. Pleadings. There shall be a petition, which shall comply with the requirements for a complaint in an action, and an answer where there is an adverse party. There shall be a reply to a counterclaim denominated as such and there may be a reply to new matter in the answer in any case. The court may permit such other pleadings as are authorized in an action upon such terms as it may specify. Where there is no adverse party the petition shall state the result of any prior application for similar relief and shall specify the new facts, if any, that were not previously shown.

S 403. Notice of petition; service; order to show cause.

(a) Notice of petition. A notice of petition shall specify the time and place of the hearing on the petition and the supporting affidavits, if any, accompanying the petition.

(b) Time for service of notice of petition and answer. A notice of petition, together with the petition and affidavits specified in the notice, shall be served on any adverse party at least eight days before the time at which the petition is noticed to be heard. An answer and supporting affidavits, if any, shall be served at least two days before such time. A reply, together with supporting affidavits, if any, shall be served at or before such time. An answer shall be served at least seven days before such time if a notice of petition served at least twelve days before such time so demands; whereupon any reply shall be served at least one day before such time.

(c) Manner of service. A notice of petition shall be served in the same manner as a summons in an action.

(d) Order to show cause. The court may grant an order to show cause to be served, in lieu of a notice of petition at a time and in a manner specified therein.

S 404. Objections in point of law.

(a) By respondent. The respondent may raise an objection in point of law by setting it forth in his answer or by a motion to dismiss the petition, made upon notice within the time allowed for answer. If the motion is denied, the court may permit the respondent to answer, upon such terms as may be just; and unless the order specifies otherwise, such answer shall be served and filed within five days after service of the order with notice of entry; and the petitioner may re-notice the matter for hearing upon two days` notice, or the respondent may re-notice the matter for hearing upon service of the answer upon seven days` notice.

(b) By petitioner. The petitioner may raise an objection in point of law to new matter contained in the answer by setting it forth in his reply or by moving to strike such matter on the day the petition is noticed or re-noticed to be heard.

S 405. Correction of defects in papers.

(a) Motion to correct. Either party may move to cure a defect or omission in the record, or to strike scandalous or prejudicial matter unnecessarily inserted in a pleading, or for a more definite statement of a pleading which is so vague or ambiguous that he cannot reasonably be required to frame a response.

(b) Time limits; pleading after disposition. A party shall make a motion under this section by serving a notice of motion or order to show cause within the time allowed for his responsive pleading. Unless the court so orders on motion made without notice on the ground that the party is unable to plead until the papers are corrected, the motion shall not extend the time for such responsive pleading. If the motion is granted, the party who made the motion shall serve and file his responsive pleading within five days after service of the amended pleading. If the motion is denied and the time to serve a responsive pleading has been extended, the party shall serve and file his responsive pleading within two days after service of the order denying the motion with notice of entry, unless the order specifies otherwise. A party may re-notice the matter for hearing upon two days` notice.

(c) Petitioner`s motion. The petitioner may raise the objections specified in subdivision (a) in his reply or by motion on the day on which the petition has been noticed or re-noticed to be heard.

Rule 406. Motions. Motions in a special proceeding, made before the time at which the petition is noticed to be heard, shall be noticed to be heard at that time.

S 407. Severance. The court may at any time order a severance of a particular claim, counterclaim or cross-claim, or as to a particular party, and order that, as to such claim or party, the special proceeding continue as an action or as a separate special proceeding.

S 408. Disclosure. 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.

Rule 409. Hearing.

(a) Furnishing of papers; filing. Upon the hearing, each party shall furnish to the court all papers served by him. The petitioner shall furnish all other papers not already in the possession of the court necessary to the consideration of the questions involved. Where such papers are in the possession of an adverse party, they shall be produced by such party at the hearing on notice served with the petition. The court may require the submission of additional proof. All papers furnished to the court shall be filed unless the court orders otherwise.

(b) Summary determination. The court shall make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised. The court may make any orders permitted on a motion for summary judgment.

S 410. Trial. If triable issues of fact are raised they shall be tried forthwith and the court shall make a final determination thereon. If issues are triable of right by jury, the court shall give the parties an opportunity to demand a jury trial of such issues. Failure to make such demand within the time limited by the court, or, if no such time is limited, before trial begins, shall be deemed a waiver of the right to trial by jury.

Rule 411. Judgment. The court shall direct that a judgment be entered determining the rights of the parties to the special proceeding.



NYCPLR Article 5

VENUE

501. Contractual provisions fixing venue.
502. Conflicting venue provisions.
503. Venue based on residence.
(a) Generally.
(b) Executor, administrator, trustee, committee, conservator, general or testamentary guardian, or receiver.
(c) Corporation.
(d) Unincorporated association, partnership, or individually-owned business.
(e) Assignee.
(f) Consumer credit transaction.

504. Actions against counties, cities, towns, villages, school districts and district corporations.
505. Actions involving public authorities.
(a) Generally.
(b) Against New York city transit authority.
506. Where special proceeding commenced. (a) Generally.
(b) Proceeding against body or officer. 507. Real property actions.

508. Actions to recover a chattel.

509. Venue in county designated.

510. Grounds for change of place of trial.

511. Change of place of trial.

(a) Time for motion or demand.
(b) Demand for change of place of trial upon ground of improper venue, where motion made. (c) Stay of proceedings.
(d) Order, subsequent proceedings and appeal.

512. Change of place of trial of action or issue triable without a jury.
513. Misplacement of venue in consumer credit transactions.

S 501. Contractual provisions fixing venue. Subject to the provisions of subdivision two of section 510, written agreement fixing place of trial, made before an action is commenced, shall be enforced upon a motion for change of place of trial.

S 502. Conflicting venue provisions. Where, because of joinder of claims or parties, there is a conflict of provisions under this article, the court, upon motion, shall order as the place of trial one proper under this article as to at least one of the parties or claims.

S 503. Venue based on residence.

(a) Generally. Except where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced; or, if none of the parties then resided in the state, in any county designated by the plaintiff. A party resident in more than one county shall be deemed a resident of each such county.


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CPLR Article 5, Continued . . .

(b) Executor, administrator, trustee, committee, conservator, general or testamentary guardian, or receiver. An executor, administrator, trustee, committee, conservator, general or testamentary guardian, or receiver shall be deemed a resident of the county of his appointment as well as the county in which he actually resides.

(c) Corporation. A domestic corporation, or a foreign corporation authorized to transact business in the state, shall be deemed a resident of the county in which its principal office is located; except that such a corporation, if a railroad or other common carrier, shall also be deemed a resident of the county where the cause of action arose.

(d) Unincorporated association, partnership, or individually-owned business. A president or treasurer of an unincorporated association, suing or being sued on behalf of the association, shall be deemed a resident of any county in which the association has its principal office, as well as the county in which he actually resides. A partnership or an individually-owned business shall be deemed a resident of any county in which it has its principal office, as well as the county in which the partner or individual owner suing or being sued actually resides.

(e) Assignee. In an action for a sum of money only, brought by an assignee other than an assignee for the benefit of creditors or a holder in due course of a negotiable instrument, the assignee`s residence shall be deemed the same as that of the original assignor at the time of the original assignment.

(f) Consumer credit transaction. In an action arising out of a consumer credit transaction where a purchaser, borrower or debtor is a defendant, the place of trial shall be the residence of a defendant, if one resides within the state or the county where such transaction took place, if it is within the state, or, in other cases, as set forth in subdivision (a).

S 504. Actions against counties, cities, towns, villages, school districts and district corporations. Notwithstanding the provisions of any charter heretofore granted by the state and subject to the provisions of subdivision (b) of section 506, the place of trial of all actions against counties, cities, towns, villages, school districts and district corporations or any of their officers, boards or departments shall be, for:
1. a county, in such county;
2. a city, except the city of New York, town, village, school district or district corporation, in the county in which such city, town, village, school district or district corporation is situated, or if such school district or district corporation is situated in more than one county, in either county; and
3. the city of New York, in the county within the city in which the cause of action arose, or if it arose outside of the city, in the county of New York.

S 505. Actions involving public authorities.

(a) Generally. The place of trial of an action by or against a public authority constituted under the laws of the state shall be in the county in which the authority has its principal office or where it has facilities involved in the action.

(b) Against New York city transit authority. The place of trial of an action against the New York city transit authority shall be in the county within the city of New York in which the cause of action arose, or, if it arose outside of the city, in the county of New York.

S 506. Where special proceeding commenced.

(a) Generally. Unless otherwise prescribed in subdivision (b) or in the law authorizing the proceeding, a special proceeding may be commenced in any county within the judicial district where the proceeding is triable.

(b) Proceeding against body or officer. A proceeding against a body or officer shall be commenced in any county within the judicial district where the respondent made the determination complained of or refused to perform the duty specifically enjoined upon him by law, or where the proceedings were brought or taken in the course of which the matter sought to be restrained originated, or where the material events otherwise took place, or where the principal office of the respondent is located, except that
1. a proceeding against a justice of the supreme court or a judge of a county court or the court of general sessions shall be commenced in the appellate division in the judicial department where the action, in the course of which the matter sought to be enforced or restrained originated, is triable, unless a term of the appellate division in that department is not in session, in which case the proceeding may be commenced in the appellate division in an adjoining judicial department; and
2. a proceeding against the regents of the university of the state of New York, the commissioner of education, the commissioner of taxation and finance, the tax appeals tribunal except as provided in section two thousand sixteen of the tax law, the public service commission, the commissioner or the department of transportation relating to articles three, four, five, six, seven, eight, nine or ten of the transportation law or to the railroad law, the water resources board, the comptroller or the department of agriculture and markets, shall be commenced in the supreme court, Albany county.
3. notwithstanding the provisions of paragraph two of this subdivision, a proceeding against the commissioner of education pursuant to section forty-four hundred four of the education law may be commenced in the supreme court in the county of residence of the petitioner.
4. a proceeding against the New York city tax appeals tribunal established by section one hundred sixty-eight of the New York city charter shall be commenced in the appellate division of the supreme court, first department.

S 507. Real property actions. The place of trial of an action in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property shall be in the county in which any part of the subject of the action is situated.

S 508. Actions to recover a chattel. The place of trial of an action to recover a chattel may be in the county in which any part of the subject of the action is situated at the time of the commencement of the action.

S 509. Venue in county designated. Notwithstanding any provision of this article, the place of trial of an action shall be in the county designated by the plaintiff, unless the place of trial is changed to another county by order upon motion, or by consent as provided in subdivision (b) of rule 511.

S 510. Grounds for change of place of trial. The court, upon motion, may change the place of trial of an action where:
1. the county designated for that purpose is not a proper county; or
2. there is reason to believe that an impartial trial cannot be had in the proper county; or
3. the convenience of material witnesses and the ends of justice will be promoted by the change.

Rule. 511. Change of place of trial.

(a) Time for motion or demand. A demand under subdivision (b) for change of place of trial on the ground that the county designated for that purpose is not a proper county shall be served with the answer or before the answer is served. A motion for change of place of trial on any other ground shall be made within a reasonable time after commencement of the action.

(b) Demand for change of place of trial upon ground of improper venue, where motion made. The defendant shall serve a written demand that the action be tried in a county he specifies as proper. Thereafter the defendant may move to change the place of trial within fifteen days after service of the demand, unless within five days after such service plaintiff serves a written consent to change the place of trial to that specified by the defendant. Defendant may notice such motion to be heard as if the action were pending in the county he specified, unless plaintiff within five days after service of the demand serves an affidavit showing either that the county specified by the defendant is not proper or that the county designated by him is proper.

(c) Stay of proceedings. No order to stay proceedings for the purpose of changing the place of trial shall be granted unless it appears from the papers that the change is sought with due diligence.

(d) Order, subsequent proceedings and appeal. Upon filing of consent by the plaintiff or entry of an order changing the place of trial by the clerk of the county from which it is changed, the clerk shall forthwith deliver to the clerk of the county to which it is changed all papers filed in the action and certified copies of all minutes and entries, which shall be filed, entered or recorded, as the case requires, in the office of the latter clerk. Subsequent proceedings shall be had in the county to which the change is made as if it had been designated originally as the place of trial, except as otherwise directed by the court. An appeal from an order changing the place of trial shall be taken in the department in which the motion for the order was heard and determined.

Rule 512. Change of place of trial of action or issue triable without a jury. The place of trial of an action or any issue triable without a jury may be, in the discretion of the court, in any county within the judicial district in which the action is triable. After the trial, the decision and all other papers relating to the trial shall be filed and the judgment entered in the county where the action is pending.

S 513. Misplacement of venue in consumer credit transactions.

(a) In an action arising out of a consumer credit transaction, the clerk shall not accept a summons for filing when it appears upon its face that the proper venue is a county other than the county where such summons is offered for filing.

(b) The clerk shall indicate upon the summons the date of the rejection and shall enter such date in a register maintained by him together with the name of the counties in which the summons may properly be filed.

(c) Notwithstanding subdivisions one and three of section three hundred eight, where a summons has been rejected for filing by virtue of this section, service is complete ten days after such summons is filed in the proper county with proof of service upon the defendant of the summons, together with proof of service upon the defendant by registered or certified mail of a notice setting forth the following:
1. the proper county,
2. the date of filing of the summons,
3. the date within which the answer or notice of appearance is to be filed, and
4. the address at which it is to be filed.