Article 78

Article 78 refers to a particular section of the New York State Civil Practice Law and Rules ("CPLR"), however, it has become synonymous with a special proceeding which allows for the challenge or review of administrative action in court.

As stated within the language of Article 78, its target is so broad and general that it includes every "body or officer" including "every court, tribunal, board, Corp., officer, or other person or aggregation of persons, whose action may be affected" by an Article 78 proceeding. Nevertheless the administrative agency is its primary target.

Article 78 proceedings blaze a trail from the administrative agency to the courthouse, and essentially focus on several different kinds of questions.

Arguably, the best known function of Article 78 is to address the "arbitrary and capricious test". In other words, to determine whether a decision made by an agency was "without sound basis in reason and . . without regard to the facts." In sum, was it unjustifiable as a mater of law.

Similarly the "abuse of discretion" is another basis for overturing an agency decision. Discretion is the authority to make any one of several decisions within certain parameters. Once those parameters have been breached, discretion is said to have been abused. If a court finds that an agency made a decision within certain confines, it will not substitute its own judgment for that of the agency.

Another question raised by Article 78 - mandamus - addresses "whether the body or officer failed to perform a duty enjoined upon it by law". In this context, an Article 78 proceeding can be used to force the execution of a responsibility which is solely ministerial and does not require judgment or discretion. Examples when Article 78s can be used in this regard are: in the civil service area - if an answer given on an examination is demonstrated to be as good as the one respondents fashioned, a mandamus direction can be had to compel the acceptance of his answer; a mandamus can compel a judge to render a decision in a case where he has not complied with the statutory deadline for rendering decisions; it can be used to force a public official to pay certain moneys if said payment is incontestable.

Yet another question, and perhaps the most applicable to the populace, queries "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". The "substantial evidence" test essentially reviews whether an agency determination strikes the Court as being rational on the record.

What does all of this mean to you? Simply put, if you believe that an agency has mishandled your case, or made an improper decision, you have an opportunity to have your case reviewed by a New York Supreme Court judge.


This is absolutely true. Special sensitivity must be given to the timing of filing your Article 78 because the statute of limitations on an Article 78 proceeding is VERY short. In fact it is ONLY FOUR MONTHS. Therefore, punctuality in these cases is as important as the case itself. It is always a good idea to hold on to the envelope that the decision came in, because the deadline

starts to run from the day you received the decision, not the date of the decision itself


Actually, an Article 78 proceeding can be filed in 2 ways. First is by "order to Show Cause." This manner is particularly valuable if you fear the agency may take action against you before the Court renders its decision. By requesting the Court include a stay in the Order you can prevent the agency from taking further action while the Article 78 is pending.

The other way to file your action is by "Notice of Petition." This is the more conventional manner of commencing the Article 78. You can not schedule your day in Court in less than 20 days from the day of filing to allow the other side time to respond to your papers.


Most Article78 proceedings are resolved on the submission of papers alone. It is the rare case that one presents an issue of fact requiring a trial. There is an opportunity to make oral arguments before the Judge who will decide the case, however, the Article 78 proceedings are really won with a winning argument articulated in your written Petition.

If you can write well, and make your point come across on paper, then you might consider filing your Article 78 pro se - without the help of a lawyer. But if you find the procedure confusing, or if you know you case but can not explain in a way that someone else will understand it clearly, you may consider a lawyer to be a worthwhile investment.

Call our office at 1-877-LAWS-ABC - our initial consultation is free upon retainer.