Ask a Law Librarian: FAQ's about Legal Research
What is an article 78.
I want to appeal an administrative order
Article 78 Proceeding: A Supreme Court case that can change an order made by an administrative agency, like NYCHA or Section 8. --CourtHelp glossary
Article 78 of New York's Civil Practice Law and Rules (CPLR) replaces the common law writs of mandamus , certiorari , and prohibition with special proceedings. Parties typically bring these proceedings to obtain judicial review of administrative action, such as decisions to grant, deny, or revoke a professional license, a zoning variance, or permission to live in subsidized housing. Parties also bring Article 78 proceedings to compel or prohibit government action, for example, to dismiss a criminal prosecution or terminate a regulatory investigation.
Special proceedings are something of a hybrid between a civil action and a motion. Like actions, special proceedings require pleadings and service of process . They receive their own index numbers and end in a final judgment. However, as with motions, the court normally decides special proceedings based on the parties' papers and any oral argument. Trial is possible but rare. There is normally no discovery . Motions, other than motions to dismiss the petition, are uncommon.
CPLR Article 78 Toolkit, Practical Law Toolkit 3-582-8866. This toolkit is available through the public access law libraries' subscription to Westlaw.
Links & Files
- CPLR Art 78 Proceeding Against a Body or Officer
- 6th JD How to Commence a Special Proceeding
- Bronx County Help Center: How to Commence a Special Proceedings
- Kings County -- How to Commence a Special Proceeding
- LawNY Article 78 Proceedings -- How to Appeal an Agency Decision
- Legal Assistance of Western New York, Inc -- Article 78 Proceedings -- How to Appeal an Agency Decision
- New York County -- How to Start a Special Proceeding
- Queens Cty, Civil Branch Help Center: How to Commence a Special Proceedings
- Richmond County -- How to Commence a Special Proceeding
- Article 78 Library Research Guide
- Last Updated Dec 06, 2023
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Article 78 Proceedings – How to Appeal an Agency Decision
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What is an Article 78 Proceeding?
Article 78 proceedings are lawsuits mainly used to challenge an action (or inaction) by agencies of New York State and local governments. Article 78 proceedings are also sometimes filed against judges, tribunals, boards, and even private companies whose existence is based on statutory authority.
Notably, appeals of decisions of the New York Department of Labor’s Unemployment Insurance Appeal Board, are an exception. Such appeals must be made to the New York State Supreme Court’s Third Department Appellate Division.
Although Article 78 proceedings are available to appeal most administrative actions in New York, the laws governing the particular agency or body should be consulted to determine if there is a specific appeal procedure. For example, Real Property law establishes a process to be used by a homeowner who wants to challenge their property tax assessment.
Court determinations in civil and criminal matters generally fall outside the scope of Article 78 review, with some exceptions.
What can I do if I get a decision from a New York agency that I disagree with?
If you disagree with an agency decision, you may want to consider appealing the decision to the New York courts. You can do so by filing an “Article 78 Proceeding.” It is named after the section of New York law that sets out the rules for this kind of case: Article 78 of the New York Civil Practice Law and Rules. People ask us about this kind of case after they have received an unfavorable hearing decision in a case involving the Department of Social Services (DSS) or a housing authority.
Article 78 is generally unavailable if the decision or determination that you seek to appeal is not final. Generally, a determination is final when there remains no further appeal options within an agency.
Do I need a lawyer?
You are not required to have a lawyer, but Article 78 proceedings are usually filed by lawyers. It is important to file the papers you need properly (a Notice of Petition and a Petition). We strongly recommend that you find a lawyer to help you. If you do not know of one, you can contact the New York State Lawyer Referral and Information Service. Their toll free number is 1-800-342-3661. They may be able to give you the names of lawyers in the area who handle this type of matter and would be willing to meet with you at the rate of $35 for an initial half-hour consultation.
Some counties have local bar referral services such as The Cattaraugus County Bar Association's Lawyer Referral Service, which can be reached at (716) 584-1254. Monroe Monroe County’s is available at mcba.org. Also, the New York Court system website, available at nycourts.gov, has an “Ask a Law Librarian” service. It is a remote legal reference service open to the general public. It is staffed by New York State Court System law library personnel from around the state and is intended to answer legal reference questions posed by the public.
In what court do I file my Article 78 proceeding?
You usually have to file your Article 78 proceeding in the New York State Supreme Court. Each county has its own Supreme Court. The Supreme Court is usually located at the County Courthouse. There is a “Court Locator” link at nycourts.gov with contact information.
Is there a time deadline for filing an Article 78 proceeding?
Yes. Article 78 proceedings must generally be filed within four months of the date you receive the decision you want to appeal. Check with a lawyer as soon as you can to find out if your deadline is even shorter.
What arguments can I raise in my Article 78 proceeding?
One argument you can raise is that the agency did not follow its own rules when it made the decision. Two of the other things the court can consider are 1) whether the decision was "arbitrary and capricious" or 2) not supported by "substantial evidence". These words have special legal meanings. "Arbitrary and capricious" means the decision is not reasonably related to the facts of the case. "Substantial evidence" is evidence that a reasonable person would accept as enough to support the agency's decision. If you lost a hearing, you probably feel that you should win on both of these issues. New York courts very often decide in favor of the agency if the agency has written down some reason for its decision, even if many people would think the decision was wrong.
Can I do anything else besides filing an Article 78 proceeding?
Sometimes an unfavorable fair hearing decision can be reversed in your favor without actually going to court to file an appeal. This usually works best when an actual mistake was made in the decision. For example, if you gave the judge papers at the hearing, and the decision says you did not bring any papers to the hearing.
If your case involves rights protected by the U.S. Constitution or the legality of a federal law, you may be able to file a case in federal court or in New York State Supreme Court. In that case, you may have up to three years from the date of the unfavorable hearing decision to file your case. It is usually safest to file the Article 78 challenge to the unfavorable hearing decision within four months of the date of the decision to make sure that you do not miss this deadline.
How long does an appeal take?
Depending on the issues involved, an appeal can take several months or longer.
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This article provides general information about this subject. Laws affecting this subject may have changed since this article was written. For specific legal advice about a problem you are having, get the advice of a lawyer. Receiving this information does not make you a client of our office.
Last Review Date: April 2023
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When you are wronged by a decision made by a government agency such as a gun licensing officer, a planning board or the New York State Department of Motor Vehicles, the law permits you the right to challenge that decision in Court. The law permits you to ask a judge to order the government or a government agency to do that which they are required to do by law or the stop doing that which they are not allowed to do by law.
In addition, the government or any government agency are not allowed to be capricious or arbitrary in the decisions that they make.
Time is short on Article 78 proceedings! See Below. Call today for a free case analysis.
Article 78 of the New York State Civil Practice Law and Rules (CPLR) provides a mechanism for actions, or inactions, of a government agency or official to be challenged in court. There are three basic forms of relief one can seek, as our New York government litigation attorneys can explain.
A Writ of Mandamus can compel a government agency or official to do something they are required by law to do. For example, one might file an Article 78 in the form of a Writ of Mandamus to Compel to compel a government agency to issue a decision on an application. One might also file an Article 78 in the form of a Writ of Mandamus to Compel to compel a court to issue a decision in a case or on motion when that court has taken too long to render such decision. An experienced Article 78 attorney at our New York firm can help you seek this type of remedy.
A Writ of Prohibition seeks to force or compel a government agency or official to refrain from doing something it should not do. For example, one might file an Article 78 in the form of a Writ of Prohibition to prohibit an agency, or even a court or judge, from acting outside the scope of their authority. If a judge were to unilaterally vacate a defendant’s accepted plea bargained for a guilty plea, for example, that defendant could bring an Article 78 in the form of a Writ of Prohibition.
A Mandamus of Review is utilized by an Article 78 or government litigation lawyer in New York where one seeks the reversal of a public agency or official’s decision. Some examples of when an Article 78 in the form of a Mandamus to Review would be used are such things as the denial of a request for a rent increase in a rent stabilized housing unit, the denial of pistol permit applications, a guilty finding in a DMV Traffic Violations Bureau hearing, and a finding of child abuse or neglect made by an agency like Child Protective Services (CPS).
Before one can avail themselves of Article 78 actions they must first exhaust all administrative procedures and reviews. Meaning, that if there is a procedure at the administrative agency to appeal a bad decision you must first appeal the decision through whatever appellate process the government set up. Only after you have exhausted that process may you file an Article 78 in Court.
Generally, the maximum statute of limitations for filing an Article 78 is 4 months. However, in some cases the period is even shorter. It is essential that you call an attorney who is experienced with Article 78 proceedings as soon as you receive the decision and discuss the statute of limitations issue.
It is important to be aware that Courts will not disturb the decisions that the government or agency made unless it is illegal or the government official abused its discretion. The Court will not substitute its judgment for that of the government agency or official. It will not review the case “de novo” or from scratch.
Speak with one of our New York government litigation lawyers, free of charge, by calling us at 877-377-8666 .
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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.
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:
- whether the body or officer failed to perform a duty enjoined upon it by law; or
- whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction; or
- 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
- 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 .
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.
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.
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.
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.
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.
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.
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.
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.
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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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ARTICLE 78 PROCEEDINGS: $5,000
Article 78 Proceedings
What is an Article 78 Proceeding?
An Article 78 Proceeding is an action brought in the Supreme Court of New York to:
- Appeal a final administrative ruling (by a state agency or government officer) based on insufficient evidence (called Certiorari to Review);
- Appeal a final administrative ruling (by a state agency or government officer) based on incorrect law or unreasonable in nature (called Review of Mandamus);
- Stop a state agency or government officer from acting (called a Writ of Prohibition); or
- Force an a state agency or government officer to act (called a Writ of Mandamus).
Article 78 Proceedings are lawsuits against a state agency or government officer. The statute that authorizes such a proceeding in New York is Article 78 of the NY Civil Practice Law & Rules.
We require a $5,000 Retainer to begin the process of any Article 78 Proceeding.
Types of Article 78 Proceedings
Real life examples of Article 78 Proceedings include:
- DOB Violation Judgment
- ECB Violation Judgment
- Licensing Denials or Revocation
- Termination of Government Employment
- Zoning Board Decisions
- Denial of Government Contracts
- Loss of 401k or retiree benefits from Local, City or State Agency
- Any and all other appeals from Local, City or State Government Decisions.
Time Limit to Bring an Article 78 Proceeding
Before an Article 78 Proceeding is brought, a party has to first appeal to the highest level possible in the administrative agency. For example, if you receive a building violation, you first have to appeal it to OATH and only then can you bring an Article 78 Proceeding.
Generally the Article 78 Proceeding has to be filed within 120 days after the final agency decision. However this time period may be shorter in some circumstances. A party must act quickly to preserve his or her rights to file an Article 78 Proceeding.
How we Charge
We require a retainer of $5,000 as we do in most litigation matters. We charge hourly from that retainer. Contact Us for more information.
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CPLR Article 78 Proceedings: Notice of Petition | Practical Law
CPLR Article 78 Proceedings: Notice of Petition
Practical law standard document 2-570-2546 (approx. 13 pages).
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2022 New York Laws CVP - Civil Practice Law and Rules Article 78 - Proceeding Against Body or Officer 7804 - Procedure.
(b) Where proceeding brought. A proceeding under this article shall be brought in the supreme court in the county specified in subdivision (b) of section 506 except as that subdivision otherwise provides.
(c) Time for service of notice of petition and answer. Unless the court grants an order to show cause to be served in lieu of a notice of petition at a time and in a manner specified therein, a notice of petition, together with the petition and affidavits specified in the notice, shall be served on any adverse party at least twenty days before the time at which the petition is noticed to be heard. An answer and supporting affidavits, if any, shall be served at least five days before such time. A reply, together with supporting affidavits, if any, shall be served at least one day before such time. In the case of a proceeding pursuant to this article against a state body or officers, or against members of a state body or officers whose terms have expired as authorized by subdivision (b) of section 7802 of this chapter, commenced either by order to show cause or notice of petition, in addition to the service thereof provided in this section, the order to show cause or notice of petition must be served upon the attorney general by delivery of such order or notice to an assistant attorney general at an office of the attorney general in the county in which venue of the proceeding is designated, or if there is no office of the attorney general within such county, at the office of the attorney general nearest such county. In the case of a proceeding pursuant to this article against members of bodies of governmental subdivisions whose terms have expired as authorized by subdivision (b) of section 7802 of this chapter, the order to show cause or notice of petition must be served upon such governmental subdivision in accordance with section 311 of this chapter.
(d) Pleadings. There shall be a verified petition, which may be accompanied by affidavits or other written proof. Where there is an adverse party there shall be a verified answer, which must state pertinent and material facts showing the grounds of the respondent's action complained of. There shall be a reply to a counterclaim denominated as such and there shall be a reply to new matter in the answer or where the accuracy of proceedings annexed to the answer is disputed. The court may permit such other pleadings as are authorized in an action upon such terms as it may specify.
(e) Answering affidavits; record to be filed; default. The body or officer shall file with the answer a certified transcript of the record of the proceedings under consideration, unless such a transcript has already been filed with the clerk of the court. The respondent shall also serve and submit with the answer affidavits or other written proof showing such evidentiary facts as shall entitle him to a trial of any issue of fact. The court may order the body or officer to supply any defect or omission in the answer, transcript or an answering affidavit. Statements made in the answer, transcript or an answering affidavit are not conclusive upon the petitioner. Should the body or officer fail either to file and serve an answer or to move to dismiss, the court may either issue a judgment in favor of the petitioner or order that an answer be submitted.
(f) Objections in point of law. The respondent may raise an objection in point of law by setting it forth in his answer or by a motion to dismiss the petition, made upon notice within the time allowed for answer. If the motion is denied, the court shall permit the respondent to answer, upon such terms as may be just; and unless the order specifies otherwise, such answer shall be served and filed within five days after service of the order with notice of entry; and the petitioner may re-notice the matter for hearing upon two days' notice, or the respondent may re-notice the matter for hearing upon service of the answer upon seven days' notice. The petitioner may raise an objection in point of law to new matter contained in the answer by setting it forth in his reply or by moving to strike such matter on the day the petition is noticed or re-noticed to be heard.
(g) Hearing and determination; transfer to appellate division. Where the substantial evidence issue specified in question four of section 7803 is not raised, the court in which the proceeding is commenced shall itself dispose of the issues in the proceeding. Where such an issue is raised, the court shall first dispose of such other objections as could terminate the proceeding, including but not limited to lack of jurisdiction, statute of limitations and res judicata, without reaching the substantial evidence issue. If the determination of the other objections does not terminate the proceeding, the court shall make an order directing that it be transferred for disposition to a term of the appellate division held within the judicial department embracing the county in which the proceeding was commenced. When the proceeding comes before it, whether by appeal or transfer, the appellate division shall dispose of all issues in the proceeding, or, if the papers are insufficient, it may remit the proceeding.
(h) Trial. If a triable issue of fact is raised in a proceeding under this article, it shall be tried forthwith. Where the proceeding was transferred to the appellate division, the issue of fact shall be tried by a referee or by a justice of the supreme court and the verdict, report or decision rendered after the trial shall be returned to, and the order thereon made by, the appellate division.
(i) Appearance by judicial officer. Notwithstanding any other provision of law, where a proceeding is brought under this article against a justice, judge, referee or judicial hearing officer appointed by a court and (1) it is brought by a party to a pending action or proceeding, and (2) it is based upon an act or acts performed by the respondent in that pending action or proceeding either granting or denying relief sought by a party thereto, and (3) the respondent is not a named party to the pending action or proceeding, in addition to service on the respondent, the petitioner shall serve a copy of the petition together with copies of all moving papers upon all other parties to the pending action or proceeding. All such parties shall be designated as respondents. Unless ordered by the court upon application of a party the respondent justice, judge, referee or judicial hearing officer need not appear in the proceeding in which case the allegations of the petition shall not be deemed admitted or denied by him. Upon election of the justice, judge, referee or judicial hearing officer not to appear, any ruling, order or judgment of the court in such proceeding shall bind said respondent. If such respondent does appear he shall respond to the petition and shall be entitled to be represented by the attorney general. If such respondent does not elect to appear all other parties shall be given notice thereof.
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What is the Rule of 78? (2024 Guide)
Tara Furey is a personal finance copywriter living in Colorado. Her love of all things personal finance started at a young age and has carried throughout her life. Prior to her career as a copywriter, Tara was a middle school math teacher.
When not working, you can find Tara enjoying the outdoors, curled up with the latest thriller or enjoying a strong espresso at a local coffee shop.
David Gregory is a sharp-eyed content editor with more than a decade of experience in the financial services industry. Before that, he worked as a child and family therapist until his love of adventure caused him to quit his job, give away everything he owned and head off to Asia. David spent years working and traveling through numerous countries before returning home with his wife and two kids in tow. His love of reading led him to seek out training at UC San Diego to become an editor, and he has been working as an editor ever since. When he’s not working, he’s either reading a book, riding his bicycle or playing a board game with his kids (and sometimes with his wife).
The Rule of 78 is a method of computing interest payments on installment loans developed in the 1930s that is now largely out of favor.
Also known as the “sum of the digits” method, this repayment plan requires you to pay more interest in the early months of the loan than you would with more traditional loan terms. It’s designed to increase the amount of interest payments collected by the lender if you pay off your loan early.
Congress largely made the practice illegal on loans greater than 61 months through the Housing and Community Development Act of 1992 , and about half of U.S. states have further restricted its use, according to the Pew Charitable Trusts . However, some subprime or payday lenders still use the Rule of 78 when computing payments.
Let’s look at how the Rule of 78 is calculated, why it’s problematic and the interest method that may be fairer to the borrower.
How Does the Rule of 78 Work?
To better understand the Rule of 78, let’s look at how lenders calculate monthly interest using it. The idea is to weight the interest so that you pay more of it in the early stages of the loan, but still pay the same amount of total interest as you would with a simple interest formula.
Here’s how it’s done mathematically. Imagine you’ve taken out a 12-month personal loan. First, you’ll need to find the sum of the number of digits for the 12-month loan term:
12 + 11 + 10 + 9 + 8 + 7 + 6 + 5 + 4 + 3 + 2 + 1 = 78
As you can see, the sum of the monthly digits for a one-year loan equals 78, demonstrating why this method is dubbed the Rule of 78.
The monthly interest is then calculated as a portion of 78 using the largest digits first and working backward. This way, the largest percentage of the interest is paid in the first month of the loan, the second-largest in the second month, and so on.
In our example, the amount of interest charged in the first month would be 12/78 of the total interest to be paid over the life of the loan. The second month’s payment would be 11/78, and so on. By the end of the repayment period, the interest payments are considerably lower than at the beginning – only 1/78 of the total.
If your loan is longer than 12 months, you can use the same formula but simply increase the sum of the digits. For example, a two-year or 24-month loan would be based on a portion of 300 rather than 78, since 1+2+3+ … + 24 is equal to 300. The first month’s payment would therefore be calculated as 24/300, the second month’s payment would be 23/300 and so on.
With this method, the interest charges are most heavily weighted in the first months of the repayment period.
The History Behind the Rule of 78
While the Rule of 78 has been largely outlawed for being too lender-friendly, the rule was actually created as a way to help borrowers.
Prior to the Great Depression, loan interest was typically calculated by the simple interest method. If you borrowed $10,000 at a 5% interest rate, your total interest would be $500. Your lender would expect you to pay back $10,500 – no matter when you paid it off. If you paid the loan early, you’d still be on the hook for the full $500.
Borrowers didn’t feel like this was fair, so the Indiana state legislature created the Rule of 78 in 1935 as part of a law designed to reduce the total amount of interest paid for people who pay their loan early.
Under the Rule of 78, the $10,000 loan above would require you to pay only $365.37 in interest if you paid the loan off in six months rather than 12.
The thought process works like this. Take the $10,000 loan as an example, and the $500 in interest. The $10,000 can be divided up into 12 payments of $833.33, and the $500 can be divided into 78 payments of $6.41.
At the start of the loan, you have access to all of the $10,000 (12/12), so you can make 12 of the 1/78th interest payments – $76.92. So you pay $910.25, your monthly principal payment plus the interest.
In the second month, you have access to the $10,000 minus $833.33, or 11/12 of the loan amount. So you make 11 of the 1/78th interest payments. And so on.
Rule of 78 vs. Simple Interest
Interest on a loan can be calculated in a variety of ways. The most common method used today is the simple interest amortization method. With this method, the amount of interest is based on the current principal of the loan. As you pay off your loan and the principal decreases, so does the interest you owe. Many loan types use this method, including most mortgages, auto loans and personal loans.
Let’s look at an example of the differences between the Rule of 78 and the simple interest method. Say you take out a 12-month loan for $1,000 with a 16.29% interest rate.
Using the Rule of 78, the monthly payment would amount to $90.87. The first month’s payment would include $13.91 worth of interest and $76.96 toward the principal. The total interest paid over the life of the loan is $90.44.
Using the simple interest method, the monthly payment would also amount to $90.87. The first month’s payment would include $13.57 worth of interest and $77.29 toward the principal. The total interest paid would amount to $90.40.
To see the difference in interest payments over the entire life of the loan, compare the two tables below:
As you can see, the total interest charges are relatively the same between the two methods if you repay the loan according to the scheduled repayment term. However, the big difference occurs when you choose to pay the loan off early.
Furthermore, the differences in interest paid can be more substantial for loans with higher balances and longer repayment periods.
How to Tell if Your Loan Uses the Rule of 78
Thoroughly read your loan terms to know if your lender is using the Rule of 78. Often, lenders who use the Rule of 78 will include it in the fine print and may not draw attention to it. If you see verbiage such as “precomputed interest,” “interest refund” or “rebate of interest,” this is a good indication the lender may be applying the Rule of 78.
Before signing any paperwork, carefully read your loan terms and don’t be afraid to ask your lender to explain exactly how your interest is calculated.
The Bottom Line
The Rule of 78 is a method used by some lenders to heavily weight interest payments during the beginning of your loan repayment to help them make as much money as legally possible on your loan. Although this method of calculating interest is no longer a common practice, some lenders may use the Rule of 78 on loans offered to subprime borrowers.
If you aren’t planning to pay back a loan early, then the Rule of 78 may have little impact on the overall interest that you pay. However, this structure heavily favors the lender if you make additional payments, as you may end up paying more interest than necessary. Before signing your loan paperwork, understand how interest will be calculated. Read the fine print and ask your lender to clarify if you have any questions.
Frequently Asked Questions about the Rule of 78
How do you calculate the rule of 78.
To calculate the Rule of 78, first determine the number of months in your loan repayment term. Then, find the sum of the digits of the months. For example, the formula for a 12-month loan would be 12 + 11 + 10 and so on. The sum is your denominator. Your weighted monthly interest payment is then calculated in reverse order, meaning the first month’s payment would be 12/78 of the total interest, the second month’s payment would be 11/78 and so on.
Why do lenders like the Rule of 78?
Lenders make money by charging interest to borrowers. The Rule of 78 allows lenders to be able to earn more interest at the beginning of the loan repayment and less toward the end of the loan. If you are paying off your loan early, the lender will have collected more interest than is fair.
What types of loans use the Rule of 78?
Although the Rule of 78 isn’t commonly used anymore, you may still find it on some short-term loans, such as those at used car dealerships, offered to subprime borrowers. These lenders may not always be forthcoming, so be sure you fully understand your loan terms before signing.
Is the Rule of 78 legal for mortgages?
The Rule of 78 is prohibited for any loan over 61 months. Because most mortgage loans are written with terms ranging from 15 to 30 years, the Rule of 78 is typically prohibited. The portion of interest paid on a fixed-rate mortgage will be higher early on because the principal balance is higher. As you pay down the principal, the less interest you owe.
How can I tell if my car loan uses the Rule of 78?
Check the terms on your loan to see whether your lender is using the Rule of 78. You may not see “Rule of 78” listed in the terms. Look for phrases such as “pre-calculated interest” or “rebate of interest,” as these terms indicate the Rule of 78 is in play. If you’re unsure, ask your lender for clarification before signing the loan agreement.
Editor’s Note: Before making significant financial decisions, consider reviewing your options with someone you trust, such as a financial adviser, credit counselor or financial professional, since every person’s situation and needs are different.
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New ban on stopping on Las Vegas Strip bridges targets people with disabilities, lawsuit alleges
FILE - A person stops to take a picture of the Sphere on a pedestrian bridge along the Las Vegas Strip, Wednesday, Jan. 17, 2024, in Las Vegas. The American Civil Liberties Union of Nevada announced Friday, Feb. 16, that it had filed a legal challenge to a controversial ban on stopping or standing on Las Vegas Strip pedestrian bridges. (AP Photo/John Locher, File)
FILE - People stop to take pictures of the Sphere on a pedestrian bridge along the Las Vegas Strip, Wednesday, Jan. 17, 2024, in Las Vegas. The American Civil Liberties Union of Nevada announced Friday, Feb. 16, that it had filed a legal challenge to a controversial ban on stopping or standing on Las Vegas Strip pedestrian bridges. (AP Photo/John Locher, File)
FILE - People stop to take pictures on a pedestrian bridge along the Las Vegas Strip, Wednesday, Jan. 17, 2024, in Las Vegas. The American Civil Liberties Union of Nevada announced Friday, Feb. 16, that it had filed a legal challenge to a controversial ban on stopping or standing on Las Vegas Strip pedestrian bridges. (AP Photo/John Locher, File)
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LAS VEGAS (AP) — A woman who uses a wheelchair due to a spinal injury has accused the county that includes Las Vegas of unfairly targeting people with disabilities under its new ban on standing or stopping while crossing pedestrian bridges on the Strip, according to a federal lawsuit filed Friday.
“Making criminals out of ordinary people who stop for even a few moments, like our client who has to stop periodically because she uses a manual wheelchair, is reckless,” said Athar Haseebullah, executive director of the American Civil Liberties Union of Nevada.
The ACLU’s legal challenge comes one month after the ordinance took effect in Clark County . The measure makes it a misdemeanor to stop, stand or engage in activity “that causes another person to stop” on Strip pedestrian bridges. That also includes up to 20 feet (6 meters) surrounding connected stairs, elevators and escalators.
Violators of the ordinance could face up to six months in jail or a $1,000 fine.
The ban doesn’t include standing or stopping if a person is waiting to use an elevator, stairway or escalator, but it doesn’t exempt people who stop due to a disability.
According to the lawsuit, Lisa McAllister, who can’t stand or walk due to a spinal injury, often stops unexpectedly either because her arms are tired, her wheelchair is malfunctioning or her path is blocked by other people.
Because of that, the lawsuit says, the ordinance “has effectively denied” McAllister and other people with disabilities the use of pedestrian bridges on the Strip because they cannot always cross without stopping. It also says that the ordinance has deterred McAllister, a Las Vegas resident, from returning to the Strip.
Visitors often stop on pedestrian bridges in the famed tourist corridor to take photos amid the glittery casino lights or to watch street performers.
The ACLU of Nevada is asking a judge to strike down the ordinance, which it says violates not only the rights of people with disabilities but also rights protected by the First Amendment, including protesting or performing on the street.
“Clark County has banned activities that receive the highest protections under the First Amendment,” the lawsuit states.
A spokesperson for the county said Friday that the county doesn’t comment on pending litigation. But in a statement last month, the county said that the ordinance isn’t meant to target street performers or people who stop to take pictures, but rather to increase public safety by ensuring a continuous flow of pedestrian traffic across the bridges.
The measure “will help to ensure our world-class tourism destination remains a safe place for people to visit and transverse,” the statement said.