Notice of Appeal to an Administrative Hearing in New York

What Is a Notice of Appeal to an Administrative Hearing?

Background

“[W]hen a petitioner asserts that the determination of a governmental body or public official is "in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion" and seeks nullification of same, then an article 78 proceeding is the appropriate vehicle through which the claim may be addressed.” (Abiele Contracting, Inc. v. New York City School Construction Authority (1997) 91 N.Y.2d 1, 7 citing CPLR 7803.)

How to Structure the Motion

Concerning the administrative appeal process: “[T]hat process is begun by filing a form with the Office of Appeals and Review. It leads to a hearing with the right to adduce evidence and call and confront witnesses....” (Kahn v. Department of Educ. (2009) 26 Misc. 3d 366, 377.)

As a prerequisite to making an Article 78 petition, a petitioner must first exhaust all of the available administrative remedies. (Serrano v. David (2007) 45 A.D.3d 270.) There exists, however, certain exceptions in which a petitioner can bypass the available administrative remedies; for example, where the petitioner challenges the agency's actions as unconstitutional or beyond the agency's grant of power, or where the administrative remedies would either be futile or cause irreparable injury. (See Watergate II Apts. v. Buffalo Sewer Auth. (1978) 46 NY2d 52, 57.) Moreover, an Article 78 petition should not be dismissed pursuant to this exhaustion rule where the agency has failed to inform the petitioner of the availability of an administrative appeal. (See Barrett v. Morgenthau (1989) 74 N.Y.2d 907, 909.) Thereafter, the petitioner has four months from the date that the agency's determination becomes final and binding to commence an Article 78 proceeding. (See CPLR 217[1].)

Mandamus Exception

An article 78 proceeding may lie in the absence of a final determination where the relief sought is by way of prohibition or by way of mandamus to compel performance by an administrative agency of a duty enjoined by law. Mandamus for such purpose, however, lies only where the right to relief is ‘clear’ and the duty sought to be enjoined is performance of an act commanded to be performed by law and involving no exercise of discretion. (Matter Hamptons Hosp v. Moore (1981) 52 N.Y.2d 88, 96 citing Weinstein-Korn-Miller, CPLR Manual [rev. ed], par 32.02(b).)

The Court’s Decision

“Although the article 78 proceeding was designed to replace the three prerogative writs formerly known as certiorari, mandamus and prohibition, reference to these writs is still useful in determining issues concerning the measurement of the applicable Statute of Limitations.” (De Milio v. Borghard (1982) 55 N.Y.2d 216, 219 citing McLaughlin, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 7801:1, pp 25-26.)

CPLR 217 provides, in pertinent part, that:

“Unless a shorter time is provided in the law authorizing the proceeding, a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner or the person whom he represents in law or in fact, or after the respondent's refusal, upon the demand of the petitioner or the person whom he represents, to perform its duty.”

The application of this four-month limitation period to a proceeding to challenge the discharge of a governmental employee depends, of course, upon the nature of the proceeding commenced. (De Milio, 55 N.Y.2d at 220.)

Issue Preclusion

”While issue preclusion may arise from the determinations of administrative agencies, these administrative decisions must be ‘quasi-judicial in character.’” (Abiele Contracting, 91 N.Y.2d at 12 citing Allied Chem. v. Niagara Mohawk Power Corp. (1988) 72 N.Y.2d 271, 276.) “To ascertain whether an agency's proceeding was ‘quasi-judicial,’ a court must engage in a multifaceted inquiry, beginning with ‘the threshold determination that the agency has the statutory authority to act adjudicatively.’” (Id., citing Ryan v. New York Tel. Co.(1984) 62 N.Y.2d 494, 499.)

“An administrative decision is quasi-judicial in character when it is ‘rendered pursuant to the adjudicatory authority of an agency to decide cases brought before its tribunals employing procedures substantially similar to those used in a court of law.’” (Matter of Jason B. v. Novello, 12 NY3d 107, 113, quoting Ryan, 62 NY2d at 499). Thus, for collateral estoppel to be triggered, not only must the identity of the issue decided in the prior action or proceeding have been the same, but also ‘there must have been a full and fair opportunity to contest the decision now said to be controlling.’” (ABN AMRO Bank, N.V. v. MBIA Inc. (2011) 17 N.Y.3d 208, 226 citing Gilberg v. Barbieri, 53 N.Y.2d 285, 291, quoting Schwartz v Public Adm'r of County of Bronx (1969) 24 N.Y.2d 65, 71.)

Documents for Notice of Appeal to an Administrative Hearing in New York

Sort By

Andrew J. Tabone AS TRUSTEE OF THE ANDREW J. TABONE TRUST AGREEMENT DATED AUGUST 24, 2004 v. Town Of Fleming, Town Of Fleming Zoning Board Of Appeals document preview

EXHIBIT(S) - 10 - Citizens United case

35 pages

FILED: CAYUGA COUNTY CLERK 04/22/2024 12:30 PM INDEX NO. E2024-0341 In re Citizens NYSCEF DOC. NO. 13 United to Protect Our Neighborhood-hillcrest..., 2023 WL 3042615... RECEIVED NYSCEF: 04/22/2024 2023 WL 3042615 (N.Y.Sup.), 2023 N.Y. Slip Op. 31194(U) (Trial Order) Supreme Court of New York. …

Case Name Andrew J. Tabone AS TRUSTEE OF THE ANDREW J. TABONE TRUST AGREEMENT DATED …