Judicial Review Flashcards
What are preconditions to seeking judicial review of administrative adjudications?
1) Must have standing - ie be party or another person adversely affected;
2) Have exhausted available administrative remedies.
What are grounds for bringing article 78 proceeding?
1) Agency failure to perform duty required by law;
2) Agency is proceeding without or in excess of jurisdiction
3) Petitioner seeking review
a) Violation of procedure;
b) affected by error of law;
c) Arbitrary; or
d) Abuse of discretion
4) Petitioner seeking review on grounds determination not supported by substantial evidence.
When must most article 78 proceedings be commenced by?
4 months after agency determination is final
When must the petition be served?
Within 15 days after statute of limitations is scheduled to expire.
What is meant by the fact that article 78 proceedings are referred to as ‘special proceedings’?
It means it’s a streamlined form of action, more like a motion though.
What papers are served?
1) verified petition of petitioner, 2) Verified answer of respondent, 3) a reply when it’s a counterclaim
When must notice of petition, petition and accompanying affidavits be served?
At least 20 days before time at which petition is noticed to be heard.
Answer/supporting affidavits 5 days before and a reply at least a day before.
How is hearing heard? Do we have discovery?
Generally heard on the papers, discovery usually doesn’t take place, so generally not for challenging SAPA adjudications.
What court should a review be commenced in?
Supreme Court unless a substantial evidence question. Then SC disposes of questions that could terminate the proceeding and transfers it to the appellate division.
What may the court do on judgment?
May annul, confirm, modify the determination or remand back to agency for reconsideration or further proceedings.
