Article 78 Proceedings
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.
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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.Writ of Mandamus
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.Writ of Prohibition
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.Mandamus of Review
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.Warning! You Have a Very Short Time to File!
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.