Part V Pleadings In Special Proceedings Pleadings In Special Proceedings

• Jurisdiction: New York

Part V — Pleadings in Special Proceedings

The Legal Writer continues with techniques on writing pleadings. In earlier issues, the Legal Writer discussed pleading techniques specific to plenary actions. The Legal Writer now discusses general requirements applicable to special proceedings.

Special Proceeding: Overview

Unlike a plenary action, a special proceeding is a relatively fast and inexpensive way to secure your client’s rights. Like a plenary action, a special proceeding ends with a court issuing a judgment. CPLR Article 4 and other statutes authorize special proceedings. As important as CPLR 3013 is to the complaint, so, too, is it applicable in special proceedings. If an authorizing statute provides a pleading instruction, follow it. Otherwise, comply with the CPLR’s liberal pleading requirements.

Special proceedings include “the proceeding to settle an infant’s claim, the proceeding by an attaching plaintiff against a garnishee to compel the garnishee to deliver property to the levying sheriff, and the several supplied for the enforcement of a money judgment.”¹⁵⁰ Other special proceedings include Article 78 CPLR proceedings and proceedings to test the arbitrability of a dispute or the validity of an arbitration award.¹⁵¹ Another special proceeding is a landlord-tenant dispute to recover rent or repossession or both;¹⁵² it’s also known as a summary proceeding to recover possession of real property.¹⁵³ An election dispute, especially a pre-election dispute that must be resolved quickly, may also be commenced as a special proceeding.¹⁵⁴ Special proceedings are further permitted when you’re seeking to destroy or confine a dangerous dog or when you’re seeking to declare a person an incapacitated person and appoint a guardian for that person.¹⁵⁵

In a special proceeding, the moving party is known as the “petitioner,”¹⁵⁶ the equivalent of a plaintiff in plenary actions. The proceeding is brought against the “respondent,” the equivalent of a defendant in plenary actions.¹⁵⁷ The petitioner initiates the proceeding by filing a petition, which serves the same function as a complaint. For drafting purposes, the petition must comply with the CPLR’s complaint requirements.¹⁵⁸ The petitioner must also attach and serve a notice of petition along with the petition.¹⁵⁹ Like a defendant in a plenary action, the respondent either files a pre-answer motion or an answer.

A petition identifies the parties, sets out the factual basis of the claim, and prays for a legal remedy. In special proceedings, you may attach affidavits and exhibits to the petition. This is unlike the procedure in commencing an action, in which a complaint is all you need. Affidavits and exhibits close any gap that might exist in a petition; they provide more detail than the petition alone. A petitioner brings a special proceeding by filing a petition with the court clerk. The notice of petition states the basis for the special proceeding, the time and place of the hearing on the petition, and “enumerates the supporting affidavits that accompany the petition.”¹⁶⁰ The notice of petition is the counterpart of a summons in a plenary action.¹⁶¹ The notice of petition must have a return date and a place for the proceeding. The return date may be changed after a judge has been assigned the case. But don’t include a fictional return date and don’t leave the date blank. Doing so might be a jurisdictional defect.¹⁶² Check with the clerk in your county about this procedure.

A respondent’s response to the petition is the answer, as in an action. An answer is required only when an adverse party exists.¹⁶³ Some special proceedings have no adverse party; this situation is similar to a party’s making an ex parte motion in an action. An answer may contain counterclaims. If multiple respondents exist, your answer may contain cross-claims. A reply is required to a counterclaim, as it is in an action. Answer a cross-claim only if the pleading demands one.¹⁶⁴ In an action, court leave is required if you’re seeking to reply to an answer that contains no counterclaim. In a special proceeding, you may reply to new matter in an answer even though the answer contains no counterclaim.¹⁶⁵

Special proceedings may also be brought by order to show cause.

Except by leave of court, joinder, interpleader, third-party practice, and intervention are forbidden in a special proceeding.¹⁶⁶ Intervention is a procedure in which an outsider can become a party to a case on the outsider’s own initiative;¹⁶⁷ intervention is available in actions and in special proceedings. For more information on joinder, interpleader, and third-party practice, consult earlier Legal Writer columns in this multi-series article on pleadings.

Expedition is the goal of special proceedings. Motion practice in special proceedings is rarer than in plenary actions. A respondent may move to dismiss, for example, on the basis of jurisdiction. In lieu of a motion, a respondent may assert lack of jurisdiction as a defense in the answer and supply proof of it in a supporting affidavit.¹⁶⁸ A motion may prove helpful when it would obviate the need for an answer, such as threshold defenses like...