Article 78 Proceeding
An Article 78 proceeding is an avenue in which an individual can challenge
the decision of an administrative agency or seek to have the court order
an agency to make a determination it has otherwise failed to make.
The only questions that may be raised in a proceeding under Article 78 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.
- A proceeding to review the final determination or order of the state review
officer pursuant to subdivision three of section forty-four hundred four
of the education law shall be brought pursuant to article four of this
chapter and such subdivision; provided, however, that the provisions of
this article shall not apply to any proceeding commenced on or after the
effective date of this subdivision.
Some examples of an Article 78 proceeding are determinations of a municipal
agency, zoning boards of appeals, review of a denial of a pistol permit
application, and revocation of a pistol permit.
Those who wish to challenge agency determinations under Article 78 may
not do so until they have exhausted their administrative remedies, but
once this point has been reached, time is of the essence, as such claims
may be barred should the Article 78 action not be commenced in a timely fashion.