What’s So Special about Special Proceedings?

Although a summons and complaint is the most commonly used method for commencing an action, little is taught in law school about a special proceeding. Special proceedings are covered by Article 4 of New York’s Civil Practice Law and Rules (N.Y. C.P.L.R.). These proceedings are sometimes preferred because of their speed and efficiency in resolving a dispute. Disputes commonly handled through a special proceeding include election challenges, confirmation of arbitration disputes, Article 78 proceedings, and even guardianship proceedings under Article 81, to name a few.

While in the past, failing to commence certain actions by special proceeding was a fatal defect, that is no longer the case. More recently, courts will simply convert the matter to a regular process. Conversely, when an action is brought through regular summons and complaint process, the action may be converted to a special proceeding.

So, what is so “special” about a special proceeding? The proceeding involves more than simply calling the parties petitioner and respondent instead of plaintiff and defendant. The equivalent of a summons and complaint is a petition with notice. A notice of petition must specify the time and place of the hearing on the petition and, while a notice need not be filed at the same time as a petition (although it must certainly be included when serving the petition upon the respondent), generally the filing of a petition should include a request for judicial intervention (RJI) so that a judge can be quickly assigned to the matter and his or her court rules can be consulted when scheduling the time and date for the hearing. Service of the petition must be made at least eight days prior to the hearing. An answer with supporting affidavits must be served at least two days before such time, and a reply by the petitioner can be served as late as the date of the hearing. Service must be accomplished in the same manner as a summons in an action. Practically, it is important to note that it is quite common for a special proceeding to be commenced by an order to show cause in lieu of a petition.

Specific to a special proceeding, “objections in point of law” may be raised by a respondent in an answer or a motion to dismiss or by the petitioner in a reply. Because of the expedient nature of a special proceeding, motions in the context of such a proceeding must be noticed to be heard at the time of the hearing of the petition. Similarly, any discovery requested must be sought by leave of court, other than notice to admit pursuant to N.Y. C.P.L.R. § 3123, which must be served no later than three days before the petition is noticed to be heard.

While generally, special proceedings are plenary, and the court may make a summary determination on the pleadings and all other paper submissions if no triable issue of fact exists, if a triable issue of fact does exist, a trial may be scheduled. The party requesting a trial by jury must make it within the time limit set by the court or risk waiving such right.

Diligent litigators who seek a quick resolution on a matter that appears mostly able to be adjudicated on the law should make themselves familiar with the special proceeding procedure of Article 4 in order to save money and time.