Section 712. Adjudication and determination in the supreme court  


Latest version.
  • 1. In the
      event  that  one  or  more  but  not  all of the governing boards of the
      affected local governments  shall  determine  that  it  is  not  in  the
      over-all  public  interest  to  approve  the  proposed  annexation,  the
      governing board of any other affected local government may apply to  the
      appellate   division   of   the   supreme  court  for  adjudication  and
      determination, on the law  and  facts,  of  the  issue  of  whether  the
      proposed annexation is in the over-all public interest.
        2.  A  proceeding  brought  under  this  section  shall  be  a special
      proceeding and, except as otherwise provided herein, shall  be  governed
      by  the  provisions of article four of the civil practice law and rules.
      Such proceeding shall be brought in the judicial district embracing  any
      county  in  which all or part of the territory proposed to be annexed is
      located, within thirty days after the filing in the office of the county
      clerk of the order by which such determination was made.
        3. The appellate division may stay or transfer  and  consolidate  with
      the  proceeding  brought pursuant to subdivision one of this section any
      other proceeding brought against one of  the  parties  pursuant  to  the
      provisions  of article seventy-eight of the civil practice law and rules
      concerning a matter described in paragraphs a, b, c or d of  subdivision
      one  of  section  seven  hundred five of this article and pending in any
      court.
        4. Notwithstanding the provisions of section four hundred one  of  the
      civil  practice law and rules or any other general or special law, after
      a proceeding is commenced pursuant to subdivision one of  this  section,
      intervention  in  such proceeding shall be allowed the following parties
      as a matter of right provided they shall have appeared formally  at  the
      hearing held pursuant to section seven hundred five of this article:  a.
      Any school district, fire district or other district corporation, public
      benefit  corporation  (where  a  majority of the governing board of such
      public benefit corporation is appointed by an officer or board of one or
      more of the affected local governments), or town or  county  improvement
      district,  situated  wholly  or  partly  in the territory proposed to be
      annexed.
        b. Any owner of taxable property located in the territory proposed  to
      be annexed.
        5.  In the event of default in appearance of all necessary respondents
      and failure  to  intervene  on  the  part  of  any  party  described  in
      subdivision  four  of  this  section  no  triable issue of fact shall be
      deemed  to  have  been  raised,  and  the  court  may  make  a   summary
      determination upon the pleadings and record.
        6.  The  court, by order of reference, shall designate three referees,
      one of whom shall be either a justice of the supreme court or a  retired
      justice  of  the  supreme court or any judge temporarily assigned to the
      supreme court, to hear and report to the court after a  trial  conducted
      in  the  same  manner  as  a  court  trying an issue without a jury. The
      provisions of article forty-four of the civil  practice  law  and  rules
      applicable  to trial by the court shall apply to a reference pursuant to
      this section.
        7. In order that the issues in such proceeding may  be  determined  in
      advance  so far as practicable and that the parties may be encouraged to
      stipulate and agree on questions of law and fact which  may  not  be  in
      dispute,  a  pre-trial  conference  shall  be held by one or more of the
      referees so designated. At such pre-trial conference, upon such terms as
      in his or their discretion may seem  proper,  the  referee  or  referees
      holding such pre-trial conference may:
        a.   Direct   pre-trial  disclosure  of  evidence  and  discovery  and
      inspection of books, records and documents;
    
        b. Permit the taking of depositions for use at the trial;
        c. Limit or restrict the number of experts to be heard as witnesses;
        d. Clarify and define the issues to be tried.
        8.  Before  the  case is finally submitted to the referees the parties
      shall be given an opportunity to submit requests for  proposed  findings
      of fact.
        9. The referees shall file their report setting forth findings of fact
      and  conclusions  of  law within thirty days after the matter is finally
      submitted. The referees' findings on the issue of whether the annexation
      is in the over-all public interest may be based on  provisions  for  the
      adjustment  of  indebtedness  and liabilities or disposition of property
      prescribed in  subdivision  one  of  section  seven  hundred  seven  and
      subdivision one of section seven hundred eight of this article for cases
      where  no agreement governing such adjustments or disposition shall have
      been executed, or such findings may be based on alternative  adjustments
      as  recommended  in  the  report  and  which might have been agreed upon
      pursuant to the other provisions  of  such  sections.  Unless  otherwise
      stipulated,  a transcript of the testimony together with the exhibits or
      copies thereof shall be filed with the report.
        10. Upon receipt of  the  referees'  report,  the  appellate  division
      shall,  after  hearing oral argument on the report of the referees, make
      its own adjudication and determination, on the law and the facts, on all
      questions presented to the referees and substitute its judgment for that
      of any of the governing boards of the local governments as made in their
      respective determinations and enter its judgment on the issue of whether
      the annexation is in the over-all public interest and on any question of
      compliance  with  procedural  provisions  of  this  article  where  such
      questions   are  before  it.  Such  determinations  shall  also  include
      directions of the court, if any, as to the manner in which  indebtedness
      or  other liabilities shall be assumed and property shall be disposed of
      subject to the provisions of sections  seven  hundred  seven  and  seven
      hundred eight of this article.
        11.  Costs shall not be allowed against any governing board of a local
      government in a proceeding brought under subdivision one of this section
      to review a  determination  of  a  governing  board  unless  such  local
      government fails to respond to the petition filed in such proceeding.
        12.  A  final  judgment  pursuant  to  this  section  or an order of a
      governing board of  a  local  government  determining  that  a  proposed
      annexation  is not in the over-all public interest shall not be a bar to
      the filing of a new petition for the same annexation.