Article 78 Proceeding in New York

What Is an Article 78 Proceeding?

Background

“An article 78 proceeding is intended to provide relief previously obtained by writs of certiorari to review, mandamus, or prohibition. An article 78 proceeding will not lie in circumstances where relief by way of the common-law writs was not available.” (Skelos v. Paterson (2009) 25 Misc. 3d 347, 353-54 citing CPLR 7801)

"A proceeding in the nature of prohibition, the second branch of CPLR 7803, may be obtained only when a body or officer is acting in a judicial or quasi-judicial capacity in excess of its authorized jurisdiction.... Thus, neither legislative nor executive action may be challenged by a writ of prohibition or an article 78 proceeding." (Skelos, supra, 25 Misc. 3d at 354.)

General Information for Complaints and Motions

"An article 78 proceeding must be commenced within four months after the administrative determination to be reviewed becomes ‘final and binding upon the petitioner.’” (In Matter of Yarbough v. Franco (2000) 95 N.Y.2d 342 citing CPLR 217; New York State Ass'n of Counties v. Axelrod (1991) 78 N.Y.2d 158, 165.)

“An administrative determination becomes ‘final and binding’ when the petitioner seeking review has been aggrieved by it.” (In Matter of Yarbough v. Franco (2000) 95 N.Y.2d 342 citing Matter of Carter v. State of New York, Executive Dept., Div. of Parole, 716 N.Y.2d 364; Matter of Edmead v. McGuire (1986) 67 N.Y.2d 714, 716; Matter of Lubin v. Board of Educ. of the City of New York (1983) 60 N.Y.2d 974, 976.)

“However, the fact that a determination is final for the purpose of its present execution does not mean it is final for judicial review purposes.” (In Matter of Yarbough v. Franco (2000) 95 N.Y.2d 342 citing cf., Matter of New York Cent. R.R. Co. v. Public Service Comm., 238 N.Y. 132, 135-136.)

An administrative determination is not final for judicial review purposes if it rests upon an empty record. (In Matter of Yarbough v. Franco (2000) 95 N.Y.2d 342.)

Limitations of Article 78 Review

An article 78 proceeding has limited scope. The only questions which may be raised in an article 78 proceeding are:

whether a body or officer failed to perform a duty enjoined upon it by law,
whether the body or officer is proceeding without or in excess of its jurisdiction,
whether a determination was made in violation of lawful procedure, was affected by an error of law, was arbitrary and capricious, or an abuse of discretion, and
whether a determination made as a result of a hearing held, and at which evidence was taken, is on the entire record, supported by substantial evidence.

(Skelos v. Paterson (2009) 25 Misc. 3d 347, 353 citing CPLR 7803.)

Standard of Review and Burdens of Proof

“Judicial review of administrative determinations is confined to the ‘facts and record adduced before the agency.’” (In Matter of Yarbough v. Franco (2000) 95 N.Y.2d 342 citing Fanelli v. New York City Conciliation and Appeals Bd. (1982) 90 A.D.2d 756, 757.)

The Court’s Decision

Under CPLR Article 78, a petitioner is not entitled to discovery as of right, but must seek leave of court pursuant to CPLR 408. Because discovery tends to prolong a case, and is therefore inconsistent with the summary nature of a special proceeding, discovery is granted only where it is demonstrated that there is need for such relief. (D'Alessandro v. Nigro (2018) 59 Misc. 3d 748, 751 [internal citaions omitted.])

“Th[e] court has the power to convert a declaratory judgment action into an Article 78 proceeding, sua sponte.” (Landmark WEST! Inc. v. N.Y. Bd. of Std. App., 2009 N.Y. Slip Op. 30911, 6 [N.Y. Sup. Ct. 2009] citing C.P.L.R. § 103(c); Rosenthal v. City of New York (2001) 283 A.D.2d 156.) “Therefore, [a] plaintiffs’ failure to move for such relief, or failure to consent to such a conversion, does not preclude [a] court from converting [an]action into an Article 78 proceeding.” (Landmark WEST! Inc. v. N.Y. Bd. of Std. App., 2009 N.Y. Slip Op. 30911, 6 [N.Y. Sup. Ct. 2009].)