Administrative agencies effect the everyday lives of New Yorkers in countless ways. These agencies are charged with the administration of the laws promulgated by the legislature. There are several unique procedural requirements associated with challenging a determination made by one of these agencies.
I. Historical Roots
Article 78 of the New York Civil Practice Law and Rules applies to “relief previously obtained by writs of certiorari to review, mandamus or prohibition.” CPLR 7801. The common law writ system existed as the primary means of challenging actions of governmental entities for centuries. The “writ” merely refers to a judicial order mandating performance or forbearance of a specific act. Writs of certiorari involve judicial review of an agency decision or action. Writs of mandamus may compel an agency to perform a specific duty. Writs of prohibition prohibit an agency from undertaking a specified action.
The modern iteration of this procedure, set forth in CPLR 7803, is a codification and replacement of the old common law system. CPLR provides the avenue for judicial review of final administrative determination by a state or local agency. It is the New York State equivalent of the federal Administrative Procedure Act.
II. Procedure
In New York, judicial review of administrative agency determinations is governed by CPLR Article 78. The party seeking judicial intervention (the petitioner) commences a special proceeding by filing an petition with the clerk of the Supreme Court in the appropriate county. Special proceedings are essentially an accelerated and more limited version of a traditional lawsuit (a plenary action) seeking relief under a specific section of the New York Code. Special proceedings are governed by the procedural requirements of CPLR Article 4. Discovery and motions are only permitted to the extent authorized by the court, but other provisions of the New York Civil Practice Law and Rules may be applicable. CPLR 103.
The petition in a CPLR Art. 78 proceeding is the rough equivalent to a complaint in an ordinary civil action. The petition must be filed within four months of the date on which the determination is deemed final and binding on the petitioner. CPLR 217. A notice of petition functions as a summons in that it is designed to put the other party on notice of the pending action and to confer jurisdiction. Both the notice and the petition must be served upon the adverse party at least twenty days before the time at which the petition is noticed to be heard. CPLR 7804. An answer must be served at least five days before the hearing date. Depending on the particular rules of the presiding judge, parties to a CPLR Art. 78 proceeding may be able to participate in oral argument on the return date.
III. Limitations
There are significant limitations associated with CPLR Art. 78 proceedings. First and foremost, courts review only final agency determinations. CPLR 7801. This means that a would-be petitioner must exhaust all administrative remedies before seeking judicial review. This expressly includes participation in all the internal procedures for appeals that a given agency may provide. Courts routinely dismiss Article 78 petitions for failure to exhaust administrative remedies, but such dismissal is generally without prejudice, allowing the petitioner to exhaust such remedies if they are not yet time-barred. See e.g. McKethan v. Stallone, 134 A.D.3d 1561 (4th Dept. 2015).
Standing is a similar prerequisite to relief and generally requires that a party has experienced a concrete injury resulting from the actions of an agency. New York courts have, in limited circumstances, expanded the scope of standing to encompass less direct and/or prospective injuries. See Save the Pine Bush Inc. v. Common Council, 13 NY3d 297 (2009) (finding that a person who uses a natural resource more than others has standing under the New York State Environment Quality Review Act to challenge government actions that threaten that resource).
Even if these prerequisites are met, parties must tether their expectations to the narrow scope of review associated with Article 78 Proceedings. Courts recognize that agencies are often best suited to interpret the statutes within their particular area of expertise. The courts apply the restrictive “arbitrary and capricious” standard, signifying that an agency determination will not be disrupted if is supported by a rational basis. See CPLR 7803. Administrative penalties, such as termination from public employment, may be subject to the “abuse of discretion” standard. CPLR 7803(3). What this means in practice is that a petitioner in a CPLR Art. 78 proceeding is only likely to prevail if the challenged agency determination violated clearly established law.
IV. Conclusion
Article 78 of the CPLR is the modern iteration of the common law writ procedure for challenging governmental action. It serves the important function of keeping administrative agencies accountable to the public and the laws of New York. Nevertheless, the procedural prerequisites to relief combined with the narrow scope of review make Article 78 proceedings challenging unless supported by clear legal authority.
About Author
Garrett Cusack graduated from the University of Maryland School of Law in 2019, where he served as an Editor of the Journal of Business & Technology Law. Read more.
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