Judicial Review of Agency Adjudication

Question 1

What two requirements must be met in order to seek review of an administrative adjudication?

Answer 1

1. Standing (the party seeking review must have standing); AND
2. Exhaustion of administrative remedies/Finality (the agency has rendered a final decision and the petitioner has exhausted all available administrative remedies)

Question 2

Which two types of people/entities may have standing in a review of an agency adjudication?

Answer 2

1. The party against whom the agency action was brought; OR
2. Anyone else affected by the agency’s decision (e.g., a neighbor challenging the grant of a zoning variance) (*not very common)

Question 3

What is Article 78? What is an Article 78 proceeding?

Answer 3

Article 78 of the New York Civil Practice Law and Rules;

Article 78 is used to appeal the decision of a New York State or local agency to the NY courts via an “Article 78 proceeding.”

Question 4

What are the grounds for bringing an Article 78 proceeding?

(4 grounds; #3 has four sub-options)

Answer 4

1. The agency failed to perform a duty required by law;
2. The agency is proceeding without (or in excess of) proper jurisdicion;
3. The petitioner is seeking review of a determination on the grounds that the determination was:
   (a) made in violation of lawful procedure;
   (b) affected by an error of law;
   (c) arbitrary and capricious (the Jackie Childs rule!); OR
   (d) an abuse of discretion; OR
4. The petitioner is seeking review of a determination on the grounds that the determination was not supported by substantial evidence

Question 5

What is the third grounds for bringing an Art. 78 proceeding to challenge an adjudicatory decision?

When is it appropriate?

Answer 5

3. The petitioner is seeking review of a determination on the grounds that the determination was:
   (a) made in violation of lawful procedure;
   (b) affected by an error of law;
   (c) arbitrary and capricious; OR
   (d) an abuse of discretion.

(It is appropriate when the challenge is based on a legal issue, not the sufficiency of the evidence, e.g., the sole ground for the challenge is that the agency incorrectly interpreted the law or rule.)

Question 6

What is the third grounds for bringing an Art. 78 proceeding to challenge an adjudicatory decision?

When is it appropriate?

Answer 6

4. The petitioner is seeking review of a determination on the grounds that the determination was not supported by substantial evidence.

(Appropriate when the challenge is based on the substantiality of the evidence - this is the principal means of challenging an agency adjudication)

Question 7

What is the statute of limitations on an Article 78 proceeding?

i.e., By when must an Article 78 proceeding be commenced?

Answer 7

Most Art 78 proceedings must be commenced within 4 MONTHS of an agency’s final/binding determination.

Commencement is done by filing with the court.

Question 8

When must you serve the petition (i.e., the claim) when bringing an Article 78 proceeding?

Answer 8

Within 15 DAYS after the SOL is scheduled to expire.

i. e., Article 78 proceedings must be commenced within four months of the agency’s determination (the SOL), and the petition/claim must be served no later than 15 days after the SOL runs.
i. e., You have 4 months and 15 days to serve the petition when commencing an Article 78 proceeding.

Question 9

What does it mean that Article 78 proceedings are “special proceedings”?

Answer 9

A special proceeding is a streamlined form of an action

(It’s more like a motion than a proceeding; there’s no discovery)

Question 10

Generally, what are the papers that must be served in an Article 78 proceeding?

Answer 10

1. Petitioner must submit a verified petition accompanied by affadavits or other written proof (at least 20 days before hearing);

THEN

2. The Respondent responds with a verified answer stating the material facts showing the grounds for the action (at least 5 days before hearing of petition);

AND SOMETIMES

3. The Petitioner responds again with a reply, when a counterclaim is alleged (at least 1 day before hearing) (*uncommon)

Question 11

When must the notice of petition, petition, and accompanying addidavits be served?

Answer 11

At least 20 days before the time at which the petition is noticed to be heard

Question 12

When must the answer and supporting affidavits be served?

Answer 12

At least five days before the hearing of the petition

Question 13

When must a reply be served?

Answer 13

At least one day before the hearing

Question 14

Generally, what is the determinative evidence in an Article 78 proceeding?

Answer 14

Generally, the papers filed with the court.

(Art. 78 allows for limited discovery and trials of fact, but these don’t usually occur.)

Question 15

What is the standard of review in a challenge to an adjudicatory decision?

(i.e., When will an agency adjudication be upheld if challenged on the grounds that the determination was not based on substantial evidence?)

Answer 15

If an agency adjudication is challenge on the grounds that the determination was not based on substantial evidence, the finding will be upheld IF there is (1) relevant proof that (2) a reasonable mind may accept (3) as adequate.

(i.e., the conclusion need only be reasonable and plausible, not necessarily the most probable!)

Question 16

In which court should a challenge to an adjudicatory determination be raised?

Answer 16

The case should be commenced in NY Sup. Ct.

Question 17

After commencing a challenge to an adjudicatory decision in the NY Sup. Ct, where does it go…

…IF a substantial evidence Q is NOT raised?

…IF a substantial evidence Q is raised?

Answer 17

If a substantial evidence Q is NOT raised, the whole case is decided in the Sup. Ct.

If a substantial evidence Q is raised, the case goes to the Appellate Division.

Question 18

What four actions may a court take after reviewing the appeal of the agency’s decision?

Answer 18

The court may:

1. Annul,
2. Confirm, or
3. Modify

the agency’s determination; OR

4. It may remand the proceedings to the agency for reconsideration