Practice Area
Article 78 Attorney: Challenging New York Agency Decisions
When an agency gets it wrong, the clock is already running.
A denied permit, a revoked license, a rejected bid, a zoning board decision that ignored your evidence, a records request the agency will not answer: in New York, the path to a court is almost always a proceeding under Article 78 of the Civil Practice Law and Rules. It is a fast, record-based form of litigation with short deadlines and narrow questions, and it rewards the side that understood the rules before the agency acted. Bondar Legal P.C. brings and defends Article 78 proceedings for businesses, property owners, contractors, institutions, and public bodies across Rockland and Westchester Counties, New York City, and the Hudson Valley.
Who has sat on the agency's side
Founder Eugene Bondar spent nearly four years as Principal Assistant County Attorney for Rockland County, serving as counsel to the County's Planning Department and Planning Board and advising the county executive team and the departments of procurement, highways and drainage, facilities management, and environmental resources, and serving as counsel to the County's FOIL appeals officer. Before that he counseled the New York City Department of Transportation on infrastructure projects and led enforcement actions there, helped build the NYC Department of Consumer Affairs' first dedicated contracts function, and served as Associate General Counsel to the Gateway Development Commission on the $16 billion federally funded Hudson River rail tunnel program. He knows how determinations are drafted, what a defensible record looks like, and where agencies most often fail to build one. That perspective is the difference between a petition that argues the merits and one that finds the error the court can act on.
The questions a court will decide
CPLR 7803 confines the court to a short list. "The 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." Framing your grievance within those questions, and matching it to the right remedy, is the core of the work.
Deadlines that end cases
CPLR 217(1) provides: "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 . . . ." Land use decisions move faster. A proceeding to review a town zoning board of appeals decision "shall be instituted within thirty days after the filing of a decision of the board in the office of the town clerk" (Town Law § 267-c(1)), and a proceeding to review a town site plan decision "shall be instituted within thirty days after the filing of a decision by such board in the office of the town clerk" (Town Law § 274-a(11)). Courts enforce these periods strictly, and the question of when a determination became final is litigated constantly. Bring the decision to the firm the week it arrives.
Matters the firm handles
- Zoning, planning, and land use determinations, including variances, site plans, subdivisions, and SEQRA determinations
- Licensing, permitting, and enforcement actions by state and city agencies, including OATH and other administrative hearings
- Procurement determinations: bid rejections, non-responsibility findings, and contract awards
- FOIL denials and constructive denials, including proceedings to compel disclosure
- Disciplinary and penalty determinations, including whether a penalty reflects "abuse of discretion as to the measure or mode of penalty or discipline imposed" (CPLR 7803(3)) and whether a determination after a required hearing is "supported by substantial evidence" (CPLR 7803(4))
- Mandamus to compel: whether the body or officer "failed to perform a duty enjoined upon it by law" (CPLR 7803(1))
- Defense of Article 78 proceedings on behalf of municipalities and public bodies
Before you file: building the record
Because the court reviews the record the agency made, the most valuable time to involve counsel is before the agency decides. Eugene helps clients frame submissions, request the hearing or written findings the statute requires, preserve objections, and exhaust administrative remedies so that the proceeding, if it becomes necessary, arrives in court on the strongest possible footing. Where a matter can still be resolved with the agency, he says so; litigation is a tool, not a default.
Request a free consultation
The initial consultation is free, and every inquiry is answered within one business day. Prefer the phone? Call (845) 200-3992.
★★★★★"I've used Eugene Bondar both personally and for my nonprofit, and I couldn't be happier. He's easy to talk to, straight to the point, and always makes time when I need him. He explains things in a way that actually makes sense and I trust him completely. Highly recommend."
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Good to Know
Article 78 Proceedings: FAQ
What is an Article 78 proceeding?
It is the special proceeding under Article 78 of the New York Civil Practice Law and Rules for asking a court to review the action or inaction of a state or local government body or officer. It replaced the old writs: under CPLR 7801, "[r]elief previously obtained by writs of certiorari to review, mandamus or prohibition shall be obtained in a proceeding under this article." Businesses and individuals use it to challenge license and permit denials, zoning and planning board decisions, procurement and contract determinations, FOIL denials, disciplinary penalties, and refusals to perform a duty the law requires.
How long do I have to file?
CPLR 217(1) provides: "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 . . . ." Some statutes set shorter periods. For a town zoning board of appeals decision, the proceeding "shall be instituted within thirty days after the filing of a decision of the board in the office of the town clerk" (Town Law § 267-c(1)); for a town site plan decision, "within thirty days after the filing of a decision by such board in the office of the town clerk" (Town Law § 274-a(11)). Determining when a determination became "final and binding" is itself contested in many cases, so the safe course is to call the week the decision arrives.
What does the court actually decide?
CPLR 7803 provides that "[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 court does not retry the facts or substitute its own judgment; it reviews the record the agency made. That is why the work you do before the agency matters so much.
Can I add new evidence in court?
Generally not. The Court of Appeals has described it as a "fundamental tenet of CPLR article 78 review" that "[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) (internal quotation marks and citations omitted)), and CPLR 7801(1) provides that, except where otherwise provided by law, an Article 78 proceeding "shall not be used to challenge a determination . . . which is not final or can be adequately reviewed by appeal to a court or to some other body or officer or where the body or officer making the determination is expressly authorized by statute to rehear the matter upon the petitioner's application unless the determination to be reviewed was made upon a rehearing, or a rehearing has been denied, or the time within which the petitioner can procure a rehearing has elapsed." If the agency never gave you a fair chance to make a record, that itself may be a ground for relief, but the working rule is that the record closes when the agency decides. Get counsel involved before the agency acts if you can.
What can the court order?
Under CPLR 7806, "[i]f 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." As to money, "[a]ny restitution or damages granted to the petitioner must be incidental to the primary relief sought by the petitioner, and must be such as he might otherwise recover on the same set of facts in a separate action or proceeding suable in the supreme court against the same body or officer in its or his official capacity." In many cases the practical result is a remand for a new determination on a proper record, so the remedy strategy has to be considered from the start.
Do you defend Article 78 proceedings for municipalities?
Yes. Eugene Bondar served as counsel to a county FOIL appeals officer and advised county departments from inside county government, and he is available to towns, villages, and other public bodies as special counsel to defend challenges to their determinations.
Is the first consultation free?
Yes. Bring the written determination, the date you received it, and your submissions to the agency. Eugene will tell you whether a proceeding is viable, what the deadline is, and what it would cost. Call (845) 200-3992 or request a consultation online.