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This entry was published on 2014-09-22
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SECTION 128
Judicial review
Public Service (PBS) CHAPTER 48, ARTICLE 7
§ 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.

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 seventy-eight of the civil
practice law and rules shall apply to appeals taken hereunder.