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 ...
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Mar 07, 2017 · 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 ...
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. Most 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 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 ...
Warning! You Have a Very Short Time to File! Generally, the maximum statute of limitations for filing an Article 78 is 4 months. However, in some cases the period is even shorter.
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.
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.
Most importantly, an article 78 proceeding must be brought 4 months, or 120 days after a final agency determination.
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:
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.
At common law, this was called a mandamus , and more specifically, a mandamus to compel.
Lawyers will charge you $35.00 for a 30-minute meeting. If your legal problem concerns personal injury, social security, medical malpractice, veteran's and military law, unemployment or workers' compensation, the 30-minute meeting with the lawyer is free.
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To be properly situated to bring an Article 78 proceeding, generally, you must be the subject of an adverse final determination of an administrative agency, public body or officer. You must have exhausted all other remedies, such as administrative appeals, and the Article 78 proceeding must be timely commenced. Only an attorney with expertise in Article 78 proceedings can advise you with certainty as to whether you have standing to bring a special proceeding under Article 78.
A proceeding brought under Article 78 is a special proceeding (CPLR 7804 [a]) and the parties to such a proceeding are referred to as “petitioners” and “respondents.”.
Properly stated, Article 78 provides the procedure in New York State for obtaining the relief previously obtained by writs of certiorari to review, mandamus or prohibition (CPLR 7801). Enacted in 1937, Article 78 is intended to supplant the three writs with a uniform procedure for obtaining the same relief. A proceeding brought under Article 78 is a special proceeding (CPLR 7804 [a]) and the parties to such a proceeding are referred to as “petitioners” and “respondents.”
A writ is a written judicial order to perform a specified act. In New York State, the relief previously obtained by writs of certiorari to review, mandamus or prohibition, is now obtained by bringing a special proceeding under Article 78. Certiorari is the writ by which the court reviews an action of an administrative agency, ...
Certiorari is the writ by which the court reviews an action of an administrative agency, public body or officer for the purpose of establishing 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 (CPLR 7803 [4]).
A proceeding under Article 78 generally must be brought in New York State Supreme Court in any county within the judicial district where the respondent made the determination complained of or refused to perform the duty specifically enjoined upon him by law, or where the proceedings were brought or taken in the course of which the matter sought to be restrained originated, or where the material events otherwise took place, or where the principal office of the respondent is located (CPLR 7804 [b] and 506 [b]). There are certain exceptions to this general rule.
An Article 78 proceeding against an administrative agency, public body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner, or after the respondent’s refusal, upon the demand of the petitioner, to perform its duty; or with leave of the court where the petitioner, at the time such determination became final and binding upon him or at the time of such refusal, was under a disability because of infancy or insanity, within two years after such time (CPLR 217 [1]).
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