Article 4. Special Proceedings


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 inter-pleaded and no third-party practice or intervention shall be allowed, except by leave of court.


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.


(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.


(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.


(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.


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.


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.


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.


(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.


 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.


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

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