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What is an Article 78 Proceeding? How can I use it in Court?

By Tatyana Bellamy-Walker

Under New York State court jurisdictions, Article 78 Proceeding allows residents to appeal a decision of a city or local agency. According to New York State Courts, there are three parts to Article 78 Proceedings: the Certiorari, Mandamus and Prohibition.

Certiorari: a determination made as a result of a hearing at which evidence was required to be and was taken, is on the entire record and supplied by substantial evidence, according to court guidelines.

Mandamus: reviews whether the body or officer failed to perform a duty ordered by law as well as whether a determination was made in violation of lawful procedure, according to court guidelines.

Prohibition: is whether the body or officer proceeded, is proceeding, or is about to proceed without or in excess of jurisdiction.

While there are many ways to use an Article 78 Proceeding, there are also limitations. Article 78 cannot be used in a determination of a civil action or criminal matter unless it is an order summarily punishing a contempt committed in the presence of the court, according to court guidelines.

Besides filing an Article 78 Proceeding, a petitioner can file the case in the federal court or in the New York State Supreme Court. Through this method, clients have up to three years from the date of the hearing decision to file the case.

There are a couple signs that an Article 78 proceeding is right for you. There are a couple signs that an Article 78 proceeding is right for you. First, you are unhappy with a government agency’s final decision. For example, an agency decides to revoke your license. In Tacos Ricos Corp. v New York State Liquor Authority – the restaurant used an Article 78 proceeding to petition the courts to return their liquor license, which was revoked because they had women dancing with customers and serving as waitresses. While the New York State Liquor Authority termed the establishment “disorderly” the courts found there was no evidence to support this claim.

More than 10 years ago, in Matter of Colaiacovo v Dormer, Sup Ct, Suffolk County, a Long Island resident used Article 78 when his wife used his pistol to commit suicide. Local officials revoked his pistol license. However, the courts sided with the petitioner stating that he was not at fault and he has the right to bear arms.

Article 78 Proceedings must be filed within four months of the date you receive the decision you want to appeal. It is mandated that Article 78 Proceedings are filed in New York State Supreme Court.

Experts recommend using a specialized lawyer for Article 78 Proceedings. This is because Article 78 Proceedings are complex and without representation, it can lead to a loss of a case or a forfeiture of rights. Under Article 78, clients may be awarded monetary damages, relief or the court may dismiss the proceeding. In all, if a New York agency grants you a decision you disagree with – you have a right to appeal the unfavorable judgment.

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