Article 78

Question 1

What is Article 78?

Answer 1

A way of obtaining judicial review of government action by state or local governments, government entities, subdivisions, etc.

(N.B. For mandemus purposes, a corporation is considered quasi-governmental because it gets its right to exist from the government!)

Question 2

Who can be the respondent in Article 78?

Answer 2

Judicial review of action by state, local government or quasi-governmental officers or bodies (includes corporations)

Question 3

What are the four grounds for 78 proceeding?

Answer 3

1. Mandamus to Compel
2. Prohibition
3. Certiorari
4. Mandamus to Review

Question 4

What is mandamus to compel?

Answer 4

Proceeding to compel performance of an act that is required by law (e.g., Compel a marriage clerk to perform a valid marriage)

Question 5

What is prohibition?

Answer 5

A proceeding to stop a judicial officer from exercising power in excess of lawful jurisdiction (i.e., a proceeding where a judge is the respondent)

Standard: “gross excess” of power

Question 6

What is a certiorari hearing?

Answer 6

Proceeding to challenge the results of an administrative agency hearing

Standard: uphold if decision supported by substantial evidence

Question 7

What is mandamus to review?

Answer 7

Everything other than mandemus to compel, prohibition, and certiorari

(Standard: uphold unless it was arbitrary and capricious)

Question 8

Who has the jurisdiction over Article 78 proceeding?

Answer 8

Exclusively Supreme Court

(Even if the respondent is the state of NY or a state agency)

Question 9

What are the procedural requirements for Article 78 proceeding?

Answer 9

Statute of Limitation: four months

Return date: 20 days before return date

Question 10

What three types of relief can be granted in Article 78?

Answer 10

1. Declaratory relief
2. Injunctive relief
3. Damages if they are incidental to the other relief