what is an article 78 proceeding

Article 78 Proceedings – How to Appeal an Agency Decision

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What is an Article 78 Proceeding?

Article 78 proceedings are lawsuits mainly used to challenge an action (or inaction) by agencies of New York State and local governments. Article 78 proceedings are also sometimes filed against judges, tribunals, boards, and even private companies whose existence is based on statutory authority.  

Notably, appeals of decisions of the New York Department of Labor’s Unemployment Insurance Appeal Board, are an exception.  Such appeals must be made to the New York State Supreme Court’s Third Department Appellate Division.

Although Article 78 proceedings are available to appeal most administrative actions in New York, the laws governing the particular agency or body should be consulted to determine if there is a specific appeal procedure. For example, Real Property law establishes a process to be used by a homeowner who wants to challenge their property tax assessment. 

Court determinations in civil and criminal matters generally fall outside the scope of Article 78 review, with some exceptions.

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 may want to consider appealing the decision to the New York courts. You can do so by filing an “Article 78 Proceeding.” It is named after the section of New York law that sets out the rules for this kind of case: Article 78 of the New York Civil Practice Law and Rules. People ask us about this kind of case after they have received an unfavorable hearing decision in a case involving the Department of Social Services (DSS) or a housing authority.

Article 78 is generally unavailable if the decision or determination that you seek to appeal is not final.  Generally, a determination is final when there remains no further appeal options within an agency.

Do I need a lawyer?

You are not required to have a lawyer, but Article 78 proceedings are usually filed by lawyers.  It is important to file the papers you need properly (a Notice of Petition and a Petition). We strongly recommend that you find a lawyer to help you. If you do not know of one, you can contact the New York State Lawyer Referral and Information Service. Their toll free number is 1-800-342-3661. They may be able to give you the names of lawyers in the area who handle this type of matter and would be willing to meet with you at the rate of $35 for an initial half-hour consultation.  

Some counties have local bar referral services such as The Cattaraugus County Bar Association's Lawyer Referral Service, which can be reached at (716) 584-1254. Monroe Monroe County’s is available at mcba.org. Also, the New York Court system website, available at nycourts.gov, has an “Ask a Law Librarian” service. It is a remote legal reference service open to the general public. It is staffed by New York State Court System law library personnel from around the state and is intended to answer legal reference questions posed by the public.

In what court do I file my Article 78 proceeding?

You usually have to file your Article 78 proceeding in the New York State Supreme Court. Each county has its own Supreme Court. The Supreme Court is usually located at the County Courthouse. There is a “Court Locator” link at nycourts.gov with contact information.

Is there a time deadline for filing an Article 78 proceeding?

Yes. Article 78 proceedings must generally be filed within four months of the date you receive the decision you want to appeal. Check with a lawyer as soon as you can to find out if your deadline is even shorter.

What arguments can I raise in my Article 78 proceeding?

One argument you can raise is that the agency did not follow its own rules when it made the decision. Two of the other things the court can consider are 1) whether the decision was "arbitrary and capricious" or 2) not supported by "substantial evidence". These words have special legal meanings. "Arbitrary and capricious" means the decision is not reasonably related to the facts of the case. "Substantial evidence" is evidence that a reasonable person would accept as enough to support the agency's decision. If you lost a hearing, you probably feel that you should win on both of these issues. New York courts very often decide in favor of the agency if the agency has written down some reason for its decision, even if many people would think the decision was wrong.

Can I do anything else besides filing an Article 78 proceeding?

Sometimes an unfavorable fair hearing decision can be reversed in your favor without actually going to court to file an appeal. This usually works best when an actual mistake was made in the decision. For example, if you gave the judge papers at the hearing, and the decision says you did not bring any papers to the hearing.

If your case involves rights protected by the U.S. Constitution or the legality of a federal law, you may be able to file a case in federal court or in New York State Supreme Court. In that case, you may have up to three years from the date of the unfavorable hearing decision to file your case. It is usually safest to file the Article 78 challenge to the unfavorable hearing decision within four months of the date of the decision to make sure that you do not miss this deadline. 

How long does an appeal take?

Depending on the issues involved, an appeal can take several months or longer.  

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This article provides general information about this subject. Laws affecting this subject may have changed since this article was written. For specific legal advice about a problem you are having, get the advice of a lawyer.  Receiving this information does not make you a client of our office.

Last Review Date: April 2023

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What is an article 78.

I want to appeal an administrative order

Article 78 Proceeding: A Supreme Court case that can change an order made by an administrative agency, like NYCHA or Section 8. --CourtHelp glossary

Article 78 of New York's Civil Practice Law and Rules (CPLR) replaces the common law writs of  mandamus ,  certiorari , and prohibition with special proceedings. Parties typically bring these proceedings to obtain judicial review of administrative action, such as decisions to grant, deny, or revoke a professional license, a zoning variance, or permission to live in subsidized housing. Parties also bring Article 78 proceedings to compel or prohibit government action, for example, to dismiss a criminal prosecution or terminate a regulatory investigation.

Special proceedings are something of a hybrid between a civil action and a motion. Like actions, special proceedings require pleadings and service of  process . They receive their own index numbers and end in a final judgment. However, as with motions, the court normally decides special proceedings based on the parties' papers and any oral argument. Trial is possible but rare. There is normally no  discovery . Motions, other than motions to dismiss the petition, are uncommon.

CPLR Article 78 Toolkit, Practical Law Toolkit 3-582-8866 . This toolkit is available through the public access law libraries' subscription to Westlaw. 

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• CPLR Art 78 Proceeding Against a Body or Officer
• 6th JD How to Commence a Special Proceeding
• Bronx County Help Center: How to Commence a Special Proceedings
• LawNY Article 78 Proceedings -- How to Appeal an Agency Decision
• Queens Cty, Civil Branch Help Center: How to Commence a Special Proceedings
• Article 78 Library Research Guide
• Last Updated May 16, 2022
• Answered By Librarian 5

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• Article 78 Proceedings

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 120 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 78.

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 7803 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, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence.

NY CPLR §7803

At common law, there were three causes of action: mandamus, certiorari, and prohibition. For reasons of fairness, the current law has shed these distinctions procedurally – however, 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 an agency decision or determination to establish whether it was supported by substantial evidence. To fall within the scope of certiorari, the review must be of a “judicial or quasi-judicial” determination – the hallmark being a trial-type hearing to enable fact finding – with the trial-type hearing having been required by law.

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, and more specifically, a mandamus to compel. To succeed in such a proceeding, the petitioner must show a “clear legal right” to the requested relief; i.e. a legal right to have the duty performed. Further, only ministerial acts that involve no exercise of judgment or discretion are subject to a mandamus to compel. In other words, if the state body or officer is merely permitted or allowed to act by law, but is not required ; i.e. it is within the discretion of the agency to act, then a mandamus to compel is improper.

Third, 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, this too was called a mandamus, more specifically a mandamus to review. It is similar to a certiorari, in that the petitioner is requesting the court to review a decision made by a state body or official, however a mandamus to review is judicial review of “administrative” determinations involving the exercise of discretion. 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 remedy has repeatedly been characterized as “extraordinary.” There are two threshold questions that exist in prohibition proceedings: whether the body or officer was acting in a judicial or quasi-judicial capacity, and whether the error was of a jurisdictional nature. 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. Further, similar to a mandamus to compel, a petitioner must show a “clear legal right” to relief. Lastly, even when all of these threshold issues have been met and a petitioner has shown a legal right to relief, courts have the discretion to refuse to consider a prohibition proceeding even when activity in question exceeds an officer’s jurisdiction. When deciding whether or not to exercise discretion, and move forward with a prohibition proceeding, a court will weigh the following three factors: “the gravity of the harm caused by the act sought to be performed by the official; whether the harm can be adequately corrected on appeal or by recourse to ordinary proceedings at law or in equity; and whether prohibition would furnish ‘a more complete and efficacious remedy ... even though other methods of redress are technically available.” It is important to note that jurisdictional violations that involve constitutional rights are most likely to qualify harms as “grave.” See Vincent Alexander, Practice Commentaries on NY CPLR § 7801 .

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 . 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 to seek review, and are deemed to have already exhausted your administrative remedies.

Once you have exhausted your administrative remedies, and have received a final decision or determination, there is a 4 month, or 120 day statute of limitation . This begins to run when an administrative decision becomes “final and binding upon petitioner,” (NY CPLR 217), which is typically when an individual receives a notice of determination. Because it is disputed exactly when the statute starts to run depending on the appeal process, what is required by law, and the nature of the action/agency, it is advised to file an Article 78 proceeding as soon as possible. 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.

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 about their employment. Some examples of this are a police officer challenging the Commissioner’s determination that he was guilty of conduct unbecoming an officer, a firefighter challenging the Department Commissioner’s determination that he failed to follow direct orders, a corrections officer challenging his termination, a probationary school social worker challenging the New York City Department of Education’s determination to terminate her, a town employee who brought a proceeding to compel reinstatement, and a director of a municipal library challenging the determination of the library board to trustees to terminate. 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, 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, state body, or officer that you would like to challenge should contact an attorney as soon as possible to properly assert your rights.

An Article 78 Appeal is an effective tool for property managers, property owners and landlords seeking back rent and rent abatements from the Division of Housing and Community Renewal “DHCR”. Article 78 Appeal may be raised state-wide, as well as in any of the five boroughs; Manhattan, Brooklyn, Queens, Bronx, Staten Island, so long as it is with 120 days or 4 months of the final judgment by the DHCR has been issued. Examples of judgments by the Division of Housing and Community Renewal that would benefit from an Article 78 Appeal may include:

• Judgments, audits or inspections by the Tenant Protection Unit “TPU”, as well as all other offices within the DHCR; Office of Community Renewal, Office of Fair Housing and Equal Opportunity, Office of Housing Operations, Office of Intergovernmental Affairs, Office of Housing Management, and Office of Rent Administration.
• Judgments concerning rent-regulated tenants. Including judgments of affordable low-income and moderate income housing in all of New York State.
• Judgements or matters concerning landlord fraud.
• Judgements or matters concerning landlord harassment.
• Compliance matters with the New York State Homes and Community Renewal Enforcement Office.
• Judgements or compliance related to Individual Apartment Improvement “IAI” audits.
• Compliance with DHCR’s Rent Registration program.
• 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.
• Matters concerning the Housing Finance Agency and the Urban Development Corporation.
• Public Notices and Meeting Orders by DHCR.
• Issues concerning Section 8 Housing. Including matters of Section 8 Housing Choice Vouchers.
• Issues concerning Section 8 Project-Based Contract Administration. Including Housing Administration contract renewals and private sector partnerships with the Office of Housing and Urban Development “HUD”.
• Matters concerning the Weatherization Assistance Program.
• Issues concerning the Nursing Home Transition and Diversion Housing Subsidy Program “NHTD”.
• Matters concerning the Homes for Veterans Program.
• Rural Area Revitalization Projects “RARP”. Including the Rural Rent Assistance Program.
• Issues arising from the Foreclosure Prevention Services Program.

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 a unique avenue for appeal outside of the expansive umbrella and jurisdiction of New York Housing Authority and allows the matter to be heard in a 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, an Article 78 Appeal is likely to be their most effective tool.

Article 78 is a powerful tool to appeal any Office of Administrative Trials and Hearings (“OATH”) judgments. New York City uses OATH to hear disciplinary cases brought by City agencies against civil service employees. Typical OATH adjudications include matters of licensing, 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 120 days or 4 months of the final City or local agency judgment. Examples of appeals of OATH decisions under Article 78 include:

• Termination from City employment positions, including; New York Police Department, Fire Department, Department of Correction, New York City Housing Authority, New York State Education Department, New York State Ethics Commission, New York Department of Sanitation, Parks Department.
• Appeal of Environmental Control Board violations.
• 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.
• Appeal of seizures by NYPD, including vehicles or property of individuals or drivers accused of crimes to determine if City’s retention of property or vehicle is lawful and necessary.
• Denial of a Liquor License, or any appeal to New York State Liquor Authority.
• Department of Social Services.
• Any City or local Housing Authority decision.
• Revoked insurance broker license.
• Division of Parole appeal.
• Any appeal to the New York State Board of Elections.
• Any appeal to the New York State Department of Environmental Conservation. 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.
• Forced early retirement from any State, City or Local agency.
• Loss of pension or 401k benefits from any State, City or Local agency.
• Loss of any employment or retiree benefits from any State, City or Local Agency.

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, an Article 78 appeal will be an effective tool to ensure their claim is heard.

OATH’s Environmental Control Board (ECB) is an independent administrative court where those ticketed by the ECB must request a hearing to contest the charges of the ticket. The reach of the ECB is vast with 13 different City agencies issuing “quality of life” tickets filing them with OATH’S ECB for hearings.

It is crucial one retains counsel prior to the ECB hearing because once the OATH’s ECB hearing has rendered a judgment, the Hearing Officer may fine you and also order you to correct the violation. All ECB judgments are set by law and therefore final, unable to be reduced or waived. The OATH’s ECB judge is bound by law to impose the legal penalty of the violation or charge.

However, once a judgement has been entered by the OATH’s ECB, any decision is appealable under Article 78 of the New York Civil and Practice Laws. Appeals made under the Article 78 provision must be made within 4 Months or 120 days after the date of the OATH ECB final decision. 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 to 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.

Most commonly issued ECB violations include: noise violations, loitering, pest control, sidewalk obstruction, unleashed dog, dirty sidewalk, recycling or garbage violations, animal control and welfare violations, essentially anything deemed a “quality of life” violation. All of which are appealable by invoking an Article 78 appeal. In an Article 78 appeal challenging any of the violations, the State Supreme Court will consider: first whether the decision was “arbitrary and capricious”, meaning the decision is not reasonably related to the facts of the case; and second, whether such decision was considered by “substantial evidence”, meaning what a reasonable person would accept as enough to support the ECB’s decision.

It is important that you retain expert counsel immediately upon issuance of a final judgment by OATH’s ECB, so that you claim can be timely filed and rights effectively advocated, placing you in the best possible position to overturn the unfavorable judgement.

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. An appeal using Article 78, is possible when the License Division has denied or revoked a premise license, a carry and premise license, a carry guard license, a carry business license, or a special carry license : you must appeal within 120 days or 4 months of the final judgment (“Notice of Disapproval” or “Revocation”) has been issued by the Licensing Division.

There will be a statement disclosing the Licensing Division’s justification for denial contained within the Notice of Disaproval,. Possible statements for denial may be:

• Arrest history casts grave doubts upon applicant’s fitness and character to possess a weapon.
• Violation of an Order of Protection.
• Failure to distinguish applicant from countless others in similar occupation without the benefit of a weapon.
• Failure to show applicant carries large amount of cash or valuables on a frequent or routine basis.

All of which statements can be challenged using an Article 78 appeal.

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 to provide more evidence explaining their decision to deny your license. Additionally, 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:

• Explanations of previous arrests to show applicant was treated unfairly. Such as recounted testimony, expungement of previous criminal convictions, previous judgments or orders that have since been vacated.
• Evidence that applicant does carry large amounts of cash or valuables on a regular or frequent basis, in either personal or business capacity.
• Evidence that applicant’s occupation or nature of business in fact requires the benefit of a weapon.
• Evidence that applicant’s previous reasons for denial were in error, which may include previous military discharges or employment terminations made in error or under circumstances which have changed.
• Evidence that more than one carry license is needed at a particular business.

An Article 78 hearing is a powerful tool for reinstating your license if the license has been revoked. Even after an investigation and hearing has led to revocation, filing under Article 78 moves the appeal to the New York State Supreme Court (and outside of the License Board’s internal proceedings) and allows for the applicant to challenge the License Divisions reasoning in a different forum wherein all evidence will be examined without bias. 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:

• Evidence the arrest or violation of a court order which led to the revocation were made in error or under circumstances which have now changed.
• Evidence stating that the revocation for failure to inform Licensing Division, for things like employment termination, psychiatric evaluation, change of address, violation of permit restrictions, arrest, or violation of order of protection, were made in error or under erroneous circumstances or have since been vacated or expunged.

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 upon, or if you think you will suffer irreparable harm if your carry permit is not granted or reinstated, you may stand to benefit from an Article 78 appeal.

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• Article 78 Proceedings

When you are wronged by a decision made by a government agency such as a gun licensing officer, a planning board or the New York State Department of Motor Vehicles, the law permits you the right to challenge that decision in Court. The law permits you to ask a judge to order the government or a government agency to do that which they are required to do by law or the stop doing that which they are not allowed to do by law.

In addition, the government or any government agency are not allowed to be capricious or arbitrary in the decisions that they make.

Time is short on Article 78 proceedings! See Below. Call today for a free case analysis.

Article 78 of the New York State Civil Practice Law and Rules (CPLR) provides a mechanism for actions, or inactions, of a government agency or official to be challenged in court. There are three basic forms of relief one can seek, as our New York government litigation attorneys can explain.

A Writ of Mandamus can compel a government agency or official to do something they are required by law to do. For example, one might file an Article 78 in the form of a Writ of Mandamus to Compel to compel a government agency to issue a decision on an application. One might also file an Article 78 in the form of a Writ of Mandamus to Compel to compel a court to issue a decision in a case or on motion when that court has taken too long to render such decision. An experienced Article 78 attorney at our New York firm can help you seek this type of remedy.

A Writ of Prohibition seeks to force or compel a government agency or official to refrain from doing something it should not do. For example, one might file an Article 78 in the form of a Writ of Prohibition to prohibit an agency, or even a court or judge, from acting outside the scope of their authority. If a judge were to unilaterally vacate a defendant’s accepted plea bargained for a guilty plea, for example, that defendant could bring an Article 78 in the form of a Writ of Prohibition.

A Mandamus of Review is utilized by an Article 78 or government litigation lawyer in New York where one seeks the reversal of a public agency or official’s decision. Some examples of when an Article 78 in the form of a Mandamus to Review would be used are such things as the denial of a request for a rent increase in a rent stabilized housing unit, the denial of pistol permit applications, a guilty finding in a DMV Traffic Violations Bureau hearing, and a finding of child abuse or neglect made by an agency like Child Protective Services (CPS).

Before one can avail themselves of Article 78 actions they must first exhaust all administrative procedures and reviews. Meaning, that if there is a procedure at the administrative agency to appeal a bad decision you must first appeal the decision through whatever appellate process the government set up. Only after you have exhausted that process may you file an Article 78 in Court.

Generally, the maximum statute of limitations for filing an Article 78 is 4 months. However, in some cases the period is even shorter. It is essential that you call an attorney who is experienced with Article 78 proceedings as soon as you receive the decision and discuss the statute of limitations issue.

It is important to be aware that Courts will not disturb the decisions that the government or agency made unless it is illegal or the government official abused its discretion. The Court will not substitute its judgment for that of the government agency or official. It will not review the case “de novo” or from scratch.

Speak with one of our New York government litigation lawyers, free of charge, by calling us at 877-377-8666 .

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CPLR Article 78 Proceedings

Appealing Administrative Determinations through CPLR Article 78 by Garrett Cusack

Administrative agencies effect the everyday lives of New Yorkers in countless ways. These agencies are charged with the administration of the laws promulgated by the legislature. There are several unique procedural requirements associated with challenging a determination made by one of these agencies.

I. Historical Roots

Article 78 of the New York Civil Practice Law and Rules applies to “relief previously obtained by writs of certiorari to review, mandamus or prohibition.” CPLR 7801 . The common law writ system existed as the primary means of challenging actions of governmental entities for centuries. The “writ” merely refers to a judicial order mandating performance or forbearance of a specific act. Writs of certiorari involve judicial review of an agency decision or action. Writs of mandamus may compel an agency to perform a specific duty. Writs of prohibition prohibit an agency from undertaking a specified action.

The modern iteration of this procedure, set forth in CPLR 7803 , is a codification and replacement of the old common law system. CPLR provides the avenue for judicial review of final administrative determination by a state or local agency. It is the New York State equivalent of the federal Administrative Procedure Act.

II. Procedure

In New York, judicial review of administrative agency determinations is governed by CPLR Article 78 . The party seeking judicial intervention (the petitioner) commences a special proceeding by filing an petition with the clerk of the Supreme Court in the appropriate county. Special proceedings are essentially an accelerated and more limited version of a traditional lawsuit (a plenary action) seeking relief under a specific section of the New York Code. Special proceedings are governed by the procedural requirements of CPLR Article 4 . Discovery and motions are only permitted to the extent authorized by the court, but other provisions of the New York Civil Practice Law and Rules may be applicable. CPLR 103 .

The petition in a CPLR Art. 78 proceeding is the rough equivalent to a complaint in an ordinary civil action. The petition must be filed within four months of the date on which the determination is deemed final and binding on the petitioner. CPLR 217 . A notice of petition functions as a summons in that it is designed to put the other party on notice of the pending action and to confer jurisdiction. Both the notice and the petition must be served upon the adverse party at least twenty days before the time at which the petition is noticed to be heard. CPLR 7804 . An answer must be served at least five days before the hearing date. Depending on the particular rules of the presiding judge, parties to a CPLR Art. 78 proceeding may be able to participate in oral argument on the return date.

III. Limitations

There are significant limitations associated with CPLR Art. 78 proceedings. First and foremost, courts review only final agency determinations. CPLR 7801. This means that a would-be petitioner must exhaust all administrative remedies before seeking judicial review. This expressly includes participation in all the internal procedures for appeals that a given agency may provide. Courts routinely dismiss Article 78 petitions for failure to exhaust administrative remedies, but such dismissal is generally without prejudice, allowing the petitioner to exhaust such remedies if they are not yet time-barred. See e.g. McKethan v. Stallone, 134 A.D.3d 1561 (4th Dept. 2015).

Standing is a similar prerequisite to relief and generally requires that a party has experienced a concrete injury resulting from the actions of an agency. New York courts have, in limited circumstances, expanded the scope of standing to encompass less direct and/or prospective injuries. See Save the Pine Bush Inc. v. Common Council, 13 NY3d 297 (2009) (finding that a person who uses a natural resource more than others has standing under the New York State Environment Quality Review Act to challenge government actions that threaten that resource).

Even if these prerequisites are met, parties must tether their expectations to the narrow scope of review associated with Article 78 Proceedings. Courts recognize that agencies are often best suited to interpret the statutes within their particular area of expertise. The courts apply the restrictive “arbitrary and capricious” standard, signifying that an agency determination will not be disrupted if is supported by a rational basis. See CPLR 7803 . Administrative penalties, such as termination from public employment, may be subject to the “abuse of discretion” standard. CPLR 7803(3). What this means in practice is that a petitioner in a CPLR Art. 78 proceeding is only likely to prevail if the challenged agency determination violated clearly established law.

IV. Conclusion

Article 78 of the CPLR is the modern iteration of the common law writ procedure for challenging governmental action. It serves the important function of keeping administrative agencies accountable to the public and the laws of New York. Nevertheless, the procedural prerequisites to relief combined with the narrow scope of review make Article 78 proceedings challenging unless supported by clear legal authority.  

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NY Criminal Appeals Lawyer: Article 78 Petitions and Proceedings

Article 78 Proceedings are brought in New York State Supreme Court to review and challenge the legality of actions and decisions by State Officials or Administrative Agencies. A person bringing the Petition is referred to as the Petitioner and the Official or Agency answering the Petition is called a Respondent.

An Article 78 proceeding can be brought to raise the following issues:

• Whether a state official or agency failed to perform a duty that is required by law;x
• Whether a state official or agency proceeded, is proceeding or is about to proceed without or in excess of jurisdiction;
• Whether a state official or agency has made a determination that violates the law, was arbitrary or capricious or was an abuse of the official’s or agency’s discretion;
• Whether a determination made by a state official or agency after a hearing was supported by substantial evidence.

Where To Bring An Article 78 Proceeding

All Article 78 Petitions must be brought initially before the New York State Supreme Court as a civil proceeding. ?An Index number must be purchased and an RJI (request for judicial intervention) as well, just as in a civil law suit. ?The judge may hold a hearing on an article 78 petition, but usually they are decided only on the papers submitted to the Supreme Court.

What Types Of Actions Can Be Brought Under Article 78

An action to compel –mandamus to compel.

When a public official has failed to do something required by law, you can bring an action to compel asking the court to force that public official to perform an act that is his/her duty to perform. ?There are a number of scenarios in which this type of Article 78 can be brought. ?They might include requesting that a local or state agency perform some duty they are required to by law. ?In a criminal setting, this type of Article 78 can be brought to force a Parole Board to do a number of things. ?You should consult with an attorney to find out the limits of this type of petition.

An Action To Review An Administrative Decision –Mandamus to Review

This type of Article 78 is a request to review the decision of a public office (local or state government official) for an abuse of discretion. ?This is referred to a request for review of an “arbitrary and capricious” decision that was without some sound legal basis. ?This type of action can be brought to challenge a number of decisions by state agencies, such as the Department of Motor Vehicles decision to deny one a license, a Parole Board’s decision to deny parole, or any other State or local agency’s decision.

An Action To Review A Hearing Board’s Decision– Certiorari to Review

This type of Article 78 proceeding challenges a decision by a hearing board of a state or local agency arguing that there was not substantial evidence to support that board’s decision. ?The New York State Supreme Court will review the hearing board’s decision to determine whether the evidence at the hearing adequately supported the hearing board’s decision.

An Action to Contest Legal Authority for State Action – Writ of Prohibition

This type of Article 78 proceeding contests the authority of some state or local agency and argues that the agency acted outside of the legal limits of its lawful authority. ?This petition can be brought in anticipation that the agency or official will, or has already, acted outside the scope of their authority.

An Article 78 Proceeding cannot be used to challenge criminal convictions or criminal sentences.

However, it can be used to challenge many other actions by Judges, such as where a Judge has acted beyond his authority (Writ of Prohibition) or has failed to act (Writ of Mandamus).

Exhaustion Rule: Before Bringing An Article 78 Proceeding You Must Exhaust All Administrative Remedies

When an Article 78 Proceeding is brought to challenge the action or inaction of an agency the Petitioner must be sure to have exhausted and pursued all remedies within the administrative process. ?If a particular State or Municipal Agency has some procedure that must be followed to challenge that Agency’s decision, then that procedure must be followed and every possible step must have been taken within the agency before one can petition under Article 78. This is referred to as the “exhaustion of remedies” and is a requirement before an Article 78 proceeding can be brought.? There are certain exceptions to the exhaustion rule such as, where exhaustion appears to be futile, where there will be irreparable harm if there is no judicial intervention or where the state official or agency’s action is unconstitutional or beyond its powers.

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Understanding Article 78 Proceedings in New York State: Why You Need an Experienced Attorney

• By: Jacob H. Zoghlin, Esq.
• Land Use & Zoning, Municipal

If you find yourself in a dispute with a state or local administrative board, agency, or officer in New York State, you may need to take legal action to challenge their determinations. In such cases, Article 78 proceedings under the New York Civil Practice Law and Rules (the “CPLR”) come into play. In this blog, we’ll explain what an Article 78 proceeding is, why you might need one, and what must be established to prevail in such a proceeding. We’ll also discuss the importance of having an attorney represent you throughout the administrative process and during the Article 78 proceeding.

An Article 78 proceeding is a legal mechanism in New York State that allows people to challenge the final decisions or actions of state or local administrative body, agency, or officer. We most often see these proceedings used to challenge local administrative actions or zoning and land use decisions. Importantly, such proceedings may only be brought after the person adversely impacted by the decision exhausts all administrative remedies.

These proceedings are named after Article 78 of the New York State Civil Practice Laws and Rules (the “CPLR”), which governs them. Article 78 proceedings were created by statute to replace the traditional, common law writs of certiorari, mandamus, and prohibition. Relief previously sought through such common law writs are now sought through Article 78 proceedings in New York State.

There are several situations where an Article 78 proceeding may be necessary. For instance:

• Reviewing Final Determinations: If an administrative board, agency, or officer has made a final decision that adversely affects someone’s rights, interests, or privileges, an Article 78 proceeding can provide a way to seek a review of that determination.
• Challenging Jurisdictional Issues: If the body or officer proceeded without or in excess of their jurisdiction, an Article 78 proceeding can be used to address this matter.
• Addressing Procedural Violations or Errors: If the administrative body or officer violated lawful procedures, committed an error of law, acted in an arbitrary and capricious manner, or abused their discretion, an Article 78 proceeding can be used to challenge the determination.
• Lack of Substantial Evidence: If an administrative decision lacks substantial evidence to support it, or its decision is irrational, an Article 78 proceeding can allow someone to contest the decision.
• Failure to Perform a Legal Duty: If an administrative body or officer neglected to carry out a duty imposed on them by law, then an Article 78 proceeding can be used to compel performance of the legal duty.

Engaging the services of an experienced zoning and land use attorney is crucial when dealing with administrative proceedings and Article 78 proceedings. Here’s why:

• Administrative Level Success: An attorney can represent the applicant, its opposition, or the public before the administrative board, agency, or officer, increasing your chances of success at this initial stage. Or an attorney can represent the board, agency, or officer that is considering the administrative application to help ensure they comply with the law and are in the best position to defend themselves against an article 78 challenge. Experienced zoning and land use attorneys can present strong arguments, navigate complex procedures, and ensure rights are protected.
• Building a Strong Record: By involving an attorney at the administrative level, applicants, opponents, the public and administrative boards, agencies, and officers can create a robust record that can be utilized in a subsequent Article 78 proceeding if necessary. An experienced attorney understands what evidence and arguments need to be presented to give you the best chance of success if an article 78 proceeding is subsequently commenced.
• Legal Experience: Zoning and land use attorneys possess the relevant knowledge and experience to handle Article 78 proceedings. They understand the intricacies of administrative law, know how to navigate the legal system, and can craft compelling legal strategies tailored to your specific situation.

Article 78 proceedings provide an avenue to challenge the decisions of state and local administrative boards, agencies, and officers in New York State. Understanding the grounds for such proceedings and the importance of legal representation throughout the process is crucial. Retaining an experienced zoning and land use attorney can significantly enhance your chances of success at both the administrative and Article 78 levels, ensuring your rights are protected and your case is effectively presented.

Only persons aggrieved by a state or local administrative actions or decision may challenge the decision in court through an Article 78 proceeding. In such a lawsuit, the Court may annul the challenged decision pursuant to CPLR §7803(3) if it finds that the decision was made “in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion.” Although some Article 78 proceedings are subject to a four-month statute of limitations under CPLR Section 217, certain categories of Article 78 proceedings are subject to a much shorter statute of limitations. For example, many local zoning and land use decisions may be challenged through an Article 78 Proceeding, but must be commenced within 30 days after the filing of the decision in the municipality’s clerk’s office. E.g. , Town Law §267-c(1); Town Law §274-b; Town Law §282; Village Law §7-712-c(1); Village Law §7-740. This very short time to challenge a ZBA’s decision is another good reason that applicants, opponents, and administrative boards, agencies, and officers should all be represented by counsel, if practicable. The applications and challenges can move very quickly, and so an experienced attorney can help prepare for these challenges and make sure important deadlines don’t get missed.

If you have questions about Article 78 proceedings, contact an experienced attorney at the Zoghlin Group for help. The Zoghlin Group offers a range of legal services related to Zoning and Land Use Law , including help at the administrative level, prosecuting or defending article 78 proceedings (either from the applicant or the opposition’s side), or acting as special counsel to administrative boards, agencies, and officers in defending against such challenges.

For inquiries related to Municipal Law , Environmental Law , or Zoning and Land Use Law issues, please contact Jacob H. Zoghlin, Esq . or Mindy Zoghlin, Esq. at The Zoghlin Group, PLLC .

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