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

By Eugene Bondar, Esq.

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 reviews the agency’s determination on the record the agency had, against familiar standards: was the decision arbitrary and capricious or an abuse of discretion? Was it affected by an error of law? Did the agency act beyond its jurisdiction, or refuse to perform a duty the law requires (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 proceedings must generally be commenced within four months of the determination becoming final and binding. Courts enforce this strictly, and figuring out when a determination became “final” is itself a trap — an agency’s willingness to keep “reconsidering” does not usually stop the clock. 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

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 we come in

Eugene spent years advising government agencies on exactly these proceedings — drafting the determinations, defending the records. That perspective now works for you: we know what a defensible agency record looks like, which means we know where the indefensible ones crack.

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

Related services: Additional Counsel — FOIL/OPRA & Article 78

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.