(b) Where proceeding brought. A proceeding under this article shall be
brought in the supreme court in the county specified in subdivision (b)
of section 506 except as that subdivision otherwise provides.
(c) Time for service of notice of petition and answer. Unless the
court grants an order to show cause to be served in lieu of a notice of
petition at a time and in a manner specified therein, a notice of
petition, together with the petition and affidavits specified in the
notice, shall be served on any adverse party at least twenty 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 five days before
such time. A reply, together with supporting affidavits, if any, shall
be served at least one day before such time. In the case of a proceeding
pursuant to this article against a state body or officers, or against
members of a state body or officers whose terms have expired as
authorized by subdivision (b) of section 7802 of this chapter, commenced
either by order to show cause or notice of petition, in addition to the
service thereof provided in this section, the order to show cause or
notice of petition must be served upon the attorney general by delivery
of such order or notice to an assistant attorney general at an office of
the attorney general in the county in which venue of the proceeding is
designated, or if there is no office of the attorney general within such
county, at the office of the attorney general nearest such county. In
the case of a proceeding pursuant to this article against members of
bodies of governmental subdivisions whose terms have expired as
authorized by subdivision (b) of section 7802 of this chapter, the order
to show cause or notice of petition must be served upon such
governmental subdivision in accordance with section 311 of this chapter.
(d) Pleadings. There shall be a verified petition, which may be
accompanied by affidavits or other written proof. Where there is an
adverse party there shall be a verified answer, which must state
pertinent and material facts showing the grounds of the respondent's
action complained of. There shall be a reply to a counterclaim
denominated as such and there shall be a reply to new matter in the
answer or where the accuracy of proceedings annexed to the answer is
disputed. The court may permit such other pleadings as are authorized in
an action upon such terms as it may specify.
(e) Answering affidavits; record to be filed; default. The body or
officer shall file with the answer a certified transcript of the record
of the proceedings under consideration, unless such a transcript has
already been filed with the clerk of the court. The respondent shall
also serve and submit with the answer affidavits or other written proof
showing such evidentiary facts as shall entitle him to a trial of any
issue of fact. The court may order the body or officer to supply any
defect or omission in the answer, transcript or an answering affidavit.
Statements made in the answer, transcript or an answering affidavit are
not conclusive upon the petitioner. Should the body or officer fail
either to file and serve an answer or to move to dismiss, the court may
either issue a judgment in favor of the petitioner or order that an
answer be submitted.
(f) Objections in point of law. 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 shall 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. 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.
(g) Hearing and determination; transfer to appellate division. Where
the substantial evidence issue specified in question four of section
7803 is not raised, the court in which the proceeding is commenced shall
itself dispose of the issues in the proceeding. Where such an issue is
raised, the court shall first dispose of such other objections as could
terminate the proceeding, including but not limited to lack of
jurisdiction, statute of limitations and res judicata, without reaching
the substantial evidence issue. If the determination of the other
objections does not terminate the proceeding, the court shall make an
order directing that it be transferred for disposition to a term of the
appellate division held within the judicial department embracing the
county in which the proceeding was commenced. When the proceeding comes
before it, whether by appeal or transfer, the appellate division shall
dispose of all issues in the proceeding, or, if the papers are
insufficient, it may remit the proceeding.
(h) Trial. If a triable issue of fact is raised in a proceeding under
this article, it shall be tried forthwith. Where the proceeding was
transferred to the appellate division, the issue of fact shall be tried
by a referee or by a justice of the supreme court and the verdict,
report or decision rendered after the trial shall be returned to, and
the order thereon made by, the appellate division.
(i) Appearance by judicial officer. Notwithstanding any other
provision of law, where a proceeding is brought under this article
against a justice, judge, referee or judicial hearing officer appointed
by a court and (1) it is brought by a party to a pending action or
proceeding, and (2) it is based upon an act or acts performed by the
respondent in that pending action or proceeding either granting or
denying relief sought by a party thereto, and (3) the respondent is not
a named party to the pending action or proceeding, in addition to
service on the respondent, the petitioner shall serve a copy of the
petition together with copies of all moving papers upon all other
parties to the pending action or proceeding. All such parties shall be
designated as respondents. Unless ordered by the court upon application
of a party the respondent justice, judge, referee or judicial hearing
officer need not appear in the proceeding in which case the allegations
of the petition shall not be deemed admitted or denied by him. Upon
election of the justice, judge, referee or judicial hearing officer not
to appear, any ruling, order or judgment of the court in such proceeding
shall bind said respondent. If such respondent does appear he shall
respond to the petition and shall be entitled to be represented by the
attorney general. If such respondent does not elect to appear all other
parties shall be given notice thereof.