N.Y. Public Service Law 128 – Judicial review
§ 128. Judicial review. 1. Any party aggrieved by any order issued on an application for a certificate may apply for a rehearing under section twenty-two within thirty days after issuance of the order and thereafter obtain judicial review of such order in a proceeding as provided in this section. Such proceeding shall be brought in the appellate division of the supreme court of the state in the judicial department embracing the county wherein the proposed facility is located. If such facility is located in more than one judicial department, such proceeding may be brought in any one but only one of such departments. Such proceeding shall be initiated by the filing of a petition in such court within thirty days after the issuance of a final order by the commission upon the application for rehearing, together with proof of service of a demand on the commission to file with said court a copy of a written transcript of the record of the proceeding before it and a copy of its order and opinion, if any. The commission's copy of said transcript, order and opinion, if any, shall be available at all reasonable times to all parties for examination without cost. Upon receipt of such petition and demand, the commission shall forthwith deliver to the court a copy of the record and a copy of its order and opinion, if any. Thereupon the court shall have jurisdiction of the proceeding and shall have power to grant such relief as it deems just and proper, and to make and enter an order enforcing, modifying, and enforcing as so modified, remanding for further specific evidence or findings or setting aside in whole or in part such order. The appeal shall be heard on the record without requirement of reproduction. No objection that has not been urged by the party in his application for rehearing before the commission shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. The findings of fact on which such order is based shall be conclusive if supported by substantial evidence on the record considered as a whole or by information set forth in the opinion. The jurisdiction of the appellate division of the supreme court shall be exclusive and its judgment and order shall be final, subject to review by the court of appeals in the same manner and form and with the same effect as provided for appeals in a special proceeding. All such proceedings shall be heard and determined by the appellate division of the supreme court and by the court of appeals as expeditiously as possible and with lawful precedence over other matters.
Terms Used In N.Y. Public Service Law 128
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Appellate: About appeals; an appellate court has the power to review the judgement of another lower court or tribunal.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Transcript: A written, word-for-word record of what was said, either in a proceeding such as a trial or during some other conversation, as in a transcript of a hearing or oral deposition.
2. The grounds for and the scope of review of the court shall be limited to whether the order of the commission and opinion, if any, is
(a) in conformity with the constitution and the laws of the state and the United States.
(b) supported by substantial evidence in the record or by information properly considered in the opinion.
(c) within the commission's statutory jurisdiction or authority.
(d) made in accordance with procedures set forth in this article or established by rule or regulation of the commission.
(e) arbitrary, capricious or an abuse of discretion.
3. Except as herein provided Article 78 of the civil practice law and rules shall apply to appeals taken hereunder.