N.Y.
Public Service Law Section 148*2
Rehearing and judicial review
1.
Any party aggrieved by any decision on an application for a certificate may apply to the board for a rehearing in the manner provided in § 22 (Rehearing before commission)section twenty-two of this chapter within thirty days after issuance of the aggrieving decision and thereafter obtain judicial review of such decision 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 facility is to be located, or if the application is denied, the county wherein the applicant has proposed to locate the facility. If such facility is proposed to be 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 decision by the board 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 and a copy of the board’s decision and opinion. The commission’s copy of said transcript, decision and opinion, 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 the board’s decision and opinion. 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 decision. If petitions are filed in more than one court, the court in which a petition was first filed shall retain exclusive jurisdiction of the proceeding, and all other petitions shall be transferred forthwith to said court. Upon motion by any party to the proceeding, or on its own motion, said court may transfer the proceedings to the appellate division in any other judicial department for good cause. 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 board 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 decision is based shall be conclusive if supported by substantial evidence on the record considered as a whole and matters of judicial notice 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.2.
The grounds for and the scope of review of the court shall be limited to whether the decision and opinion of the board are:(a)
in conformity with the constitution and the laws of the state and the United States;(b)
supported by substantial evidence in the record and matters of judicial notice properly considered in the opinion;(c)
within the board’s statutory jurisdiction or authority;(d)
made in accordance with procedures set forth in this article or established by rule or regulation pursuant to this article;(e)
arbitrary, capricious or an abuse of discretion.3.
Except as herein provided article seventy-eight of the civil practice law and rules shall apply to appeals taken hereunder.4.
For purposes of § 12 (Counsel to the commission)section twelve of this chapter, any proceeding or action involving the board shall be deemed to be a proceeding or action involving the commission. * NB Expired January 1, 1979 * NB Operative with regard to applications filed on or before December 31, 1978 * NB There are 2 § 148’s
Source:
Section 148*2 — Rehearing and judicial review, https://www.nysenate.gov/legislation/laws/PBS/148*2 (updated Sep. 22, 2014; accessed Apr. 13, 2024).
