Article 78: How to Challenge a New York Agency Decision That Got It Wrong

By Eugene Bondar, Esq. · Updated September 29, 2026

Government agencies decide things every day that change businesses and lives: a permit denied, a license revoked, a bid rejected, a violation sustained, an application sitting unanswered for months. When an agency gets it wrong, the answer in New York is usually a special proceeding under CPLR Article 78, the mechanism for asking a court to review what the agency did.

What a court will actually review

Article 78 is not a do-over. The Court of Appeals has put it this way: “[j]udicial review of administrative determinations is confined to the ‘facts and record adduced before the agency.’” Matter of Featherstone v. Franco, 95 N.Y.2d 550, 554 (2000) (quoting Matter of Yarbough v. Franco, 95 N.Y.2d 342, 347 (2000), in turn quoting Matter of Fanelli v. New York City Conciliation & Appeals Bd., 90 A.D.2d 756, 757, aff’d for reasons stated below, 58 N.Y.2d 952). And the questions the court may decide are fixed by statute. Under CPLR 7803, “[t]he only questions that may be raised in a proceeding under this article are: 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, including abuse of discretion as to the measure or mode of penalty or discipline imposed; or 4. 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.” The first of those is the classic mandamus situation, which includes agencies that simply won’t act at all.

That framing matters strategically: the fight is usually won or lost in the administrative record, before any petition is filed. What you submit to the agency, the objections you preserve, and the appeals you exhaust become the universe the judge sees.

The four-month guillotine

Article 78 has a short limitations period, set by CPLR 217(1): “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.” Note the opening clause: some statutes set a shorter period. Zoning board and planning board decisions under the Town Law, for example, must be challenged “within thirty days after the filing of a decision of the board in the office of the town clerk” (Town Law § 267-c(1); see also Town Law § 274-a(11)). Figuring out when a determination became “final and binding” is itself a trap. If you are weighing a challenge, the time to call a lawyer is the week the decision arrives, not month three.

What relief looks like

Under CPLR 7806, “[t]he judgment may grant the petitioner the relief to which he is entitled, or may dismiss the proceeding either on the merits or with leave to renew. If the proceeding was brought to review a determination, the judgment may annul or confirm the determination in whole or in part, or modify it, and may direct or prohibit specified action by the respondent.” Money is limited: “[a]ny restitution or damages granted to the petitioner must be incidental to the primary relief sought by the petitioner.” CPLR 7806. In practice that means a successful petition can annul the determination, send the matter back to the agency to do it properly, or compel the agency to act. Sometimes the realistic goal is leverage: agencies that know their record is weak often resolve matters once a credible petition is on file.

Where this firm comes in

Eugene spent nearly four years as Principal Assistant County Attorney for Rockland County, advising the county executive team and county departments and serving as counsel to the County’s FOIL appeals officer. That perspective now works for you: he knows what a defensible agency record looks like, which means he knows where the indefensible ones crack.

If an agency decision is threatening your business or livelihood, contact the firm today. The four-month clock is likely already running. The consultation is free.

Related services: Article 78 Proceedings · Municipal Law, Land Use & Zoning · Additional Counsel: FOIL/OPRA

Attorney Advertising. This post is for general informational purposes only and does not constitute legal advice. Limitations periods are fact-specific; consult an attorney promptly about your situation.