What is an Article 78 Proceeding, and How Do I Bring One?

 

ny article 78

Justia US Law US Codes and Statutes New York Laws New York Laws CVP - Civil Practice Law & Rules Article 78 - (Civil Practice Law & Rules) PROCEEDING AGAINST BODY OR OFFICER - Procedure. View the New York Consolidated Laws | View Previous Versions of the New York Consolidated Laws. New York Laws. Article 78 case challenging a termination Matter of Adam R. Duchinsky v Nicholas Scoppetta, Fire Commissioner of the City of New York, and The City of New York This Article 78 case was brought about by Petitioner, Adam Duchinsky to challenge his termination and seek reinstatement as a probationary. Mar 07,  · An Article 78 proceeding against a justice of the New York State Supreme Court or a judge of a county court must be commenced in the Appellate Division in the judicial department where the action, in the course of which the matter sought to be enforced or restrained originated, is triable, unless a term of the Appellate Division in that Author: James D. Murtha, Esq.


Article 78 Proceeding Law and Legal Definition | USLegal, Inc.


There are four instances where an article 78 proceeding is proper: to review of a decision of a state body or officer that was based on insufficient evidence; to review of a decision of a state body or officer that was obviously incorrect or unreasonable, or based on an error of law; to compel a state body or officer to act; and, to prohibit a state body or officer from acting beyond its authority.

In order to properly bring an article 78 proceeding, a petitioner must have first exhausted their administrative remedies discussed in detail below. Most importantly, an article 78 proceeding must be brought 4 months, or days after a final agency determination.

Please see below for a detailed discussion on article 78 proceedings, as well as examples of the types of cases that fall under article An article 78 proceeding describes when an individual the petitioner asks a state court to review a decision or action of a New York State body or officer. According to section of the New York Civil Practice Law and Rules, the only questions that may be raised in a proceeding under this article are:.

At common law, there were three ny article 78 of action: mandamus, certiorari, ny article 78, and prohibition, ny article 78. For reasons of fairness, the current law has shed these distinctions procedurally — however, ny article 78, the substantive law on which they are based has not changed.

Therefore, a petitioner needs only to present his or her facts and prayer for relief. If a remedy is available, a proceeding will commence. First, an individual can petition the court to review a decision made by a state body or officer, because the decision was based upon insufficient evidence.

At common law, this was called certiorari. Pursuant to a writ of certiorari the court reviews ny article 78 agency decision or determination to establish whether it was supported by substantial evidence, ny article 78.

Second, an individual can petition the court to command a state body or officer to perform a specified ministerial act that it is required by law to perform. At common law, this was called a mandamus, ny article 78, and more specifically, a mandamus to compel. Further, only ministerial acts that involve no ny article 78 of judgment or discretion are subject to a mandamus to compel. In other words, if the state body or officer is merely ny article 78 or allowed to act by law, but is not required ; i.

Ny article 78, an individual can petition the court to review a decision made by a state body or agency, because the decision was obviously incorrect or unreasonable, or based on an error law.

At common law, ny article 78 too was called a mandamus, more specifically a mandamus to review. It is necessary to distinguish between mandamus to review and certiorari because of the difference in the applicable standard of review.

In a mandamus to review, the standard of review is whether the agency determination was arbitrary and capricious or affected by an error of law. This is in contrast to the standard of review discussed above for certiorari, which is substantial evidence test. Lastly, the fourth and final available form of relief is to petition a state court to order the state body or official to not act beyond its authority.

At common law this was called a writ of prohibition. This form of relief is usually only available to restrain the conduct of judges and similar adjudicatory officials, and is meant to correct jurisdictional errors. Therefore, errors of substantive or procedural law are beyond the purview of prohibition, regardless of how egregious the error may be. As has been explained above through a discussion of the various available forms of relief, an individual can only challenge administrative decisions.

In addition, before bringing an Article 78 proceeding, a petitioner must have exhausted all of his or her administrative remedies, ny article 78. This means that a petitioner is not permitted to seek review of an agency decision if a final determination has not yet been made, if the determination can be appealed through administrative channels, or if rehearing of the matter is expressly authorized by statute at the administrative level.

However, there are specific exemptions to the exhaustion rule, such as the futility of an administrative remedy, irreparable harm in the absence of prompt judicial intervention, or an unconstitutional action. If your case falls within an exemption to the exhaustion rule — then you are permitted ny article 78 seek review, and are deemed to have already exhausted your ny article 78 remedies.

Once you have exhausted your administrative remedies, and have received a final decision or determination, there is a 4 month, or day statute of limitation. Practically, this means you should contact an attorney as soon an agency, administrative or state body, or officer has made a determination that you would like to challenge, to ensure that your time to file an article 78 proceeding is not running out, ny article 78. There are many different real world types of article 78 proceedings.

In the labor and employment context, employees who work for state agencies, or municipalities often file article 78 proceedings against a decision from an Administrative Law Judge, or against their employer challenging decisions made ny article 78 their employment.

Other examples of special proceedings under article 78 are those brought by prisoners who challenge decisions made by the Commissioner of Corrections, such as transfer requests, or the Board of Parole; individuals who challenge determinations of the architectural review boards, school boards, planning commission, or zoning boards, such as denial of land-permit; individuals who challenge state licensing agencies, such as real estate brokers; individuals who challenge denied FOIL applications; and tenants in low-income housing owned by the New York City Housing Authority who challenge determination made by the Authority regarding their tenancy, or appealing Office of Professional Misconduct, OPMC, Department of Health for Professional Misconduct decisions.

Individuals living on Long Island, in either Nassau or Suffolk counties, or in one of the five boroughs; Manhattan, Brooklyn, Staten Island, the Bronx or Queens who work for New York State, ny article 78, a state agency or municipality who would like to challenge a determination about your employment, or anyone who has received a determination from an administrative body, ny article 78, state body, or officer that you would like to challenge should contact an attorney as soon as possible to properly assert your rights.

Article 78 Appeal may be raised state-wide, as well as in any of the five boroughs; Manhattan, Brooklyn, Queens, ny article 78, Bronx, Staten Island, so long as it is with days or 4 months of the final judgment by the DHCR has ny article 78 issued. Examples of judgments by the Division of Housing and Community Renewal that would benefit from an Article 78 Appeal may include:.

Filing an Article 78 Appeal in cases related to the Division of Housing and Community Renewal, changes the forum in which the appeal will be heard.

Effectively removing the appeal from the housing court where it was previously heard, and allowing it to be heard in the New York Supreme Court in the County the matter arose.

This change of forum, removes any lingering bias of the previous decision and allows for the matter to be objectively heard with all evidence considered in a new venue.

Article 78 provides ny article 78 unique avenue for appeal outside of the expansive umbrella and jurisdiction of New York Housing Authority and allows the matter to be heard in ny article 78 court not accustomed to dealing with the political pressure of the Housing Authority.

If a property manager, property owner or landlord has received an unfavorable decision or judgment from any agency under the Housing Authority umbrella, and believe to have exhausted all other remedies, ny article 78, an Article 78 Appeal is likely to be their most effective tool, ny article 78.

Typical OATH adjudications include matters of licensing, ny article 78, regulatory, or enforcement authority for City contractors, holders of almost any City licenses, or City employment positions.

Article 78 hearings are extremely useful because of the wide variety of cases that may be appealed. Appeals under Article 78 are permitted within days or 4 months of the final City or local agency judgment. Appeals under Article 78 are relevant for any matter or judgment of a City, State or local licensing board or enforcement authority. When an individual decides to bring a Article 78 to appeal a unfavorable judgment by any of the aforementioned agencies, it effectively moves the appeal to be held in the State Supreme Court of the County where the action occurred.

This effectively changes the forum the appeal will be heard and eliminates any previous bias, and allows all old and new evidence to be examined by a neutral judge.

For individuals who believe they have been issued an unfair or bias decision by any State, City or local agency, without the chance to provide sufficient evidence, ny article 78, an Article 78 appeal will be an effective tool to ensure their claim is heard.

All ECB judgments are set by law and therefore final, unable to be reduced or waived. By invoking an Article 78 appeal, the appeal hearing is automatically removed from the OATH ECB administrative court which rendered the previously unfavorable decision, and places it in the State Supreme Court of the County where the action occurred.

This effectively removes any of the previous bias that may have led ny article 78 the unfavorable decision and ensures that all evidence will be considered in a neutral forum. Additionally, any new evidence which you seek to introduce on your behalf will also be considered in the appeal. All of which are appealable by invoking an Article 78 appeal. If you have applied for a handgun license and been denied, or your license has been revoked, you may be entitled to challenge the decision through an Article 78 appeal.

Possible statements for denial may be:. After receiving a Notice of Disapproval, filing an Article 78 appeal may be uniquely useful because it forces the Licensing Board to explain their decision more in depth at an Administrative Hearing. The Board may be compelled ny article 78 provide more evidence explaining their decision to deny your license. Additionally, ny article 78, it permits the applicant the opportunity to present further information, which speaks directly to the stated reason for denial.

Some examples of information the applicant may present at the hearing include:. An Article 78 hearing is a powerful tool for reinstating your ny article 78 if ny article 78 license has been revoked. Filing article 78 for reinstatement or continuation of a carry permit prompts the Licensing Division to compile additional evidence justifying their rationale and also allows the applicant another formal review. The applicant may present evidence such as:.

If you believe their appeal to the Licensing Division is futile given the current circumstances, such as because of bias or change of circumstances previously relied ny article 78, or if you think you will ny article 78 irreparable harm if your carry permit is not granted or reinstated, you may stand to benefit from an Article 78 appeal.

Practice Areas. Article 78 Ny article 78. Article 78 Proceedings Brief explanation of an article There are four instances where an article 78 proceeding is proper: to review of a ny article 78 of a state body or officer that was based on insufficient evidence; to review of a decision of a state body or officer that was obviously incorrect or unreasonable, or based on an error of law; to compel a state body or officer to act; and, to prohibit a state body or officer from acting beyond its authority.

The Four Questions that can be Raised in an Article 78 Proceeding An article 78 proceeding describes when an individual the petitioner asks a state court to review a decision or action of a New York State body or officer.

According to section of the New York Civil Practice Law and Rules, the only questions that may be raised in a proceeding under this article are: whether the body or officer failed to perform a duty enjoined upon it by law; or whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction; or whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed; or whether a determination made as a result of a hearing held, ny article 78, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence, ny article 78.

Requirement of Finality, Exhaustion, and the Statute of Limitations As has been explained above through a discussion of the various available forms of relief, an individual can only challenge administrative decisions. Real World Examples of Article 78 Proceedings There are many different real world types of article 78 proceedings. Judgments concerning rent-regulated tenants.

Including judgments of affordable low-income and moderate income housing in all of New York State, ny article 78. Judgements or matters concerning landlord fraud. Judgements or matters concerning landlord harassment. Judgments, compliance or matters related to rent stabilization and rent control. Matters concerning the Mitchell-Lama Housing Program.

Matters concerning the Empire Housing Fund Program. Issues concerning Section 8 Housing. Including matters of Section 8 Housing Choice Vouchers. Matters concerning the Weatherization Assistance Ny article 78. Matters concerning the Homes for Veterans Program.

Including the Rural Rent Assistance Program. Issues arising from the Foreclosure Prevention Services Program. Appeal of Environmental Control Board violations, ny article 78. Appeal of judgments made by Taxi or Limousine Tribunal. Taxi and Limousine Commission violations. Appeal of Health Tribunal. Including judgments made by the Department of Health and Mental Hygiene. Department of Social Services. Any City or local Housing Authority ny article 78. Revoked insurance broker license.

Division of Parole appeal. Including any City violations or citations by the Department of Environmental Conservation. Discrimination and human rights violations by any City or State agency. All decisions by any land use or zoning authority of agency statewide. Denial of any City or State building contracts.

 

New York City Article 78 Proceedings Attorney :: Article 78 Proceedings :: Nassau County Lawyer

 

ny article 78

 

An Article 78 proceeding is used to appeal the decision of a New York State or local agency to the New York courts. What can I do if I get a decision from a New York agency that I disagree with? If you disagree with an agency decision, you can appeal the decision to the New York courts. You can do so by bringing an “Article 78 Proceeding.”. May 21,  · NEW YORK STATE OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE David Hansell Commissioner OFFICE OF LEGAL AFFAIRS John P. Bailly, Jr. General Counsel An Overview of Article 78 Practice and Procedure WITH William H. Bristow III, Deputy Section Chief State of New York Office of the Attorney General Litigation Bureau Professional Practice. Article 78 case challenging a termination Matter of Adam R. Duchinsky v Nicholas Scoppetta, Fire Commissioner of the City of New York, and The City of New York This Article 78 case was brought about by Petitioner, Adam Duchinsky to challenge his termination and seek reinstatement as a probationary.