Article 78 Proceedings

Brief explanation of an article 78:

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.

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 7803 of the New York Civil Practice Law and Rules, the only questions that may be raised in a proceeding under this article are:

1. whether the body or officer failed to perform a duty enjoined upon it by law; or
2. whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction; or
3. 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
4. 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.

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. 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.

Real World Examples of Article 78 Proceedings

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.

Article 78 Appeal for Property Managers:

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.

Using Article 78 to appeal an OATH Hearing:

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.

Using Article 78 to appeal an Environmental Control Board Decision:

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.

USING ARTICLE 78 TO APPEAL HANDGUN LICENSING:

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.

IF YOUR LICENSE HAS BEEN DENIED OR DISAPPROVED :

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.

IF YOUR LICENSE HAS BEEN REVOKED

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.