CPLR Article 78 proceedings and interlocutory appeals during an Article 78 proceeding.

AuthorCastiglione, Joseph F.
PositionNew York Civil Procedure Law and Rules

    A proceeding under Article 78 of the New York Civil Practice Law and Rules ("CPLR") is the primary means for challenging administrative actions by a body or officer in New York State. (1) Judicial review of those actions may result in any number of interlocutory or intermediate determinations by a court, similar to the types of decisions made in a plenary action, which a litigant may want to challenge by immediate appeal. (2) Unlike the broad right of appeals provided for in a plenary action, however, there are very limited grounds for appealing interlocutory orders in an Article 78 proceeding. (3) Those limited grounds include the primary avenue of seeking permission to appeal. (4) Due to the limited circumstances available for appealing an intermediate order in an Article 78 proceeding based upon the nature and purpose of those proceedings, (5) litigants should humbly seek permission to appeal any such order at the outset, rather than risk receiving a dismissal from an unforgiving court. (6)

    This article generally discusses the nature and purpose of an Article 78 special proceeding, and the limited circumstances for appealing interlocutory orders made in an Article 78 proceeding due to the nature and purpose of such proceedings.

  2. The Nature and Purpose of a CPLR Article 78 Proceeding

    The CPLR generally provides the procedures governing applications for judicial relief in civil matters. (7) The CPLR directs that "[a]ll civil judicial proceedings shall be prosecuted in the form of an action, except where prosecution in the form of a special proceeding is authorized." (8) "An action is the plenary prosecution of a right in a court of law, seeking the vindication of that right in a final judgment." (9) Conversely, "[a] special proceeding ... must be based on specific statutory authorization." (10) Relative here, a proceeding under CPLR Article 78 is expressly identified as "a special proceeding." (11)

    The provisions in CPLR Article 78 constitute the "specific statutory authorization" and provide the primary procedures for challenging certain actions and determinations by a "body or officer" acting on behalf of the State of New York or local agencies. (12) The provisions of Article 78 explain that "[t]he expression 'body or officer' includes every court, tribunal, board, corporation, officer, or other person, or aggregation of persons, whose action may be affected by a proceeding under this article." (13) The statutorily authorized challenges against these governmental bodies or officers include in those categories, inter alia, the following:

    (1) whether the body or officer failed to perform a duty enjoined upon it by law; or (2) whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction; or (3) 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. (14)

    The above provisions of "Article 78 [were] designed to facilitate requests for relief based on the common-law writs of mandamus, prohibition, and certiorari without regard to the technical distinctions between them." (15) "[T]he writs evolved primarily as mechanisms to control governmental action." (16) As explained in the case Board of Education v. Parsons, (17) "[t]he remedies of certiorari to review, mandamus and prohibition, which were three distinct remedies, each designed for a different type of wrong, were part of the law of England and became part of the law of New York." (18) The New York Legislature, however, adopted Article 78 of the CPLR "in order to provide a uniform procedure for judicial review of government action or inaction formally cognizable under the common-law writs of certiorari, mandamus, and prohibition." (19)

    In explaining the purpose of the legislature's codifications of the common law writs through the former Article 78 of the Civil Practice Act (the predecessor to today's CPLR Article 78), (20) the New York State Court of Appeals previously explained:

    At the same time that the Legislature by article 78 of the Civil Practice Act abolished "the classifications, and writs and orders of certiorari to review, mandamus and prohibition" it provided that "the relief heretofore obtained by such writs or orders shall hereafter be obtained as provided in this article." No right to relief theretofore available by certiorari, by mandamus, or by prohibition, for the review of a determination made by a public body or officer or for the annulment of an official act not performed in accordance with law or to "compel performance of a duty specifically enjoined by law" was destroyed. The primary purpose of the new article was to wipe out technical distinctions which had been a snare for suitors approaching the court for relief and which, at times, hampered the court in granting relief for proven grievances. (21) While the legislature ultimately codified the former writs available under common law, the codification was not intended to affect any substantive rights previously available by common law: "Although article 78 supersedes [the former] common-law writs, it does so in procedure only. A party's right to relief still depends upon the substantive law of the former writs." (22)

    Relative to challenging governmental actions or decisions by a body or officer, the legislature intended that any such challenges be brought and determined expeditiously, after the action or decision is final. The legislature's haste-less intention is evidenced by its codification of the former common law methods for challenging government actions by "specific statutory authorization" as a special proceeding. (23) It has been specifically noted that "[i]t is in the very spirit and purpose of proceedings under article 78 to provide a summary remedy, so summary, indeed, as to dispense with the need or occasion for the application for summary judgment." (24) That is because the legislature generally intended that "swift adjudication ... be achieved by way of a special proceeding." (25)

    In accordance with the legislature's above expeditious intention, the CPLR generally provides a four-month statute of limitations for challenging actions or decisions by a body or officer. (26) Specifically,

    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. (27) In discussing the above four-month limitation period, the Court of Appeals has explained that "[t]hose 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, they must act quickly--within four months--or their claims will be time-barred." (28) That is because "[a] strong public policy underlies the abbreviated statutory time frame: the operation of government agencies should not be unnecessarily clouded by potential litigation." (29)

    Those amongst the bench and bar dealing with local planning and zoning board actions, including related determinations involving the State Environmental Quality Review Act ("SEQRA"), are especially aware of the expeditious nature of an Article 78 proceeding. (30) Such matters typically evoke a severely unforgiving thirty-day limitations period, including challenges relating to site plan, subdivision, or other zoning decisions or actions by local bodies and officials. (31) The thirty-day commencement provisions for challenging zoning and land use actions or determinations are accompanied by the legislature's direction that such proceedings receive "preferences" from the courts. (32) Statutes providing for those challenges each generally require that such a "proceeding ... shall have preference over all civil actions and proceedings." (33)

    While the legislature intended that challenges to governmental decision-making be brought and adjudicated quickly, in many instances it may take several years for the administrative process to unfold before culminating in any final action. (34) This can be especially true in the administrative review process for land use and zoning matters generally, including the SEQRA process related to those matters. (35) As noted in the cases of Riverkeeper, Inc. v. Planning Board, Fleming v. New York City Department of Environmental Protection, and Kent Acres Development Co., v. City of New York, the administrative review process can result in changes to the underlying project or application being reviewed by a body or officer, or invoke other agency reviews or approvals for the underlying project or application. (36) As a result of the events occurring, or matters raised during proceedings before a body or officer, issues can develop that have significant implications in any subsequent challenge to the final administrative action under CPLR Article 78. (37) The summary nature of an Article 78 proceeding, while important to quickly address the governmental action, especially after the typical lengthy administrative process, has significant impacts on appeals of such issues when raised during an Article 78 proceeding. (38)


    The provisions of Article 78 allow a respondent to "raise an objection in point of law by setting it forth in his answer or by a motion to dismiss the petition." (39) As succinctly explained by Vincent Alexander in his practice commentaries on CPLR section 7804(f):

    The first sentence of CPLR 7804(f) is identical to that of CPLR 404(a). Both provisions, including the quaint phrase "objections in point of law," have their origin in [section]...

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