Article 78 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 answer 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;
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.

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).

Where the Article 78 Proceeding is brought to challenge to 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.

In some cases there are important time limitations and an attorney should be consulted immediately.