NEW YORK CIVIL PRACTICE LAW AND RULES
Summary: APPEAL OF ADMINISTRATIVE AGENCY, BOARD OF DIRECTORS AND ARBITRATION DECISIONS IN NEW YORK STATE
ARTICLE 78, 75
NEW YORK CIVIL PRACTICE LAW AND RULES
APPEAL OF ADMINISTRATIVE AGENCY, BOARD OF DIRECTORS AND ARBITRATION
DECISIONS IN NEW YORK STATE
MANDAMUS IN EQUITY, SPECIAL PROCEEDINGS IN NEW YORK
Article 78 is the term used for N.Y. Supreme Court Special Proceedings: Appeals
of New York State government administrative decisions, including municipal
authorities Metropolitan Transportation Authority, NYCTA, NYPD, New York City
Office Administrative Proceedings (OATH) civil summons and Dept. of Buildings,
all zoning and land use, Landmarks decisions, Environmental Control Board
violations, fines etc., ; loss of New York City and New York State licenses for all
professionals, and trades, arbitration decisions based upon collective bargaining
agreements, or contracts to arbitrate , or even private Corporations Board of
In sum, our office files appeals for clients aggrieved by these decisions, Article
78 is the NYS CPLR procedure for these appeals to be filed in Supreme Court.
Article 78 is a special proceeding, that includes the law of equity: mandamus,
for ordering/compelling a government officer or board to perform an act or make
a decision that pursuant to law when it has not done so. (Even a Supreme Court
Justice moved to issue a years old decision in a matter, though this is rare for the
Article 78 proceedings must be filed quickly after the decision appealed from,
usually within 30, 45, 60 or 90 days of the decision.
So client can’t visit the office on the last day, as the papers: Petition, Notice of
Petition, Affirmation, and supporting exhibits including the decisions appealed
from and all evidence supporting the petition ,must be filed with the Court,
County Clerk by e filing.
After filing these papers, a return date is picked by Counsel, when the opposing
parties file their papers in opposition, there can be oral argument when the
Justice of the Supreme Court makes an initial decision. It can be combined with an
order to show cause for immediate relief.
In appeals from arbitration decision, and after a decision from administrative
agency hearings, the Petition is forwarded to the Appellate Division for a review
of the evidence.
In certain government agency decisions there is a questions as to whether
“substantial evidence” supports the decision.
To overturn and reverse the agency decision there are a number of legal
arguments that can be made.
These arguments include that there cannot be fraud in the proceedings,
another is that the decision cannot be “irrational.”
In past years the Court considered whether the decision was arbitrary and
capricious, but that standard of review has been replaced by “substantial
evidence” or a shocking to the conscience standard in employee disciplinary loss
of employment/termination decisions.
Here is a case I am particularly proud of: a victory against NYCTA
In the Matter of Fernandez v New York City Transit Authority Aug. 7, 2014, 120
AD2nd 407, App. Division First Department :
I represented Carlos Fernandez a civil service employee who lost his bus driver
job after administrative disciplinary charges were filed against him that he
allegedly committed a sex act by himself on a deserted NYCTA bus that was
parked near a subway station.
The Article 75, 78 I filed appealed the MTA-NYCTA -Local 100 Union arbitration
decision that found the termination of Grievant Carlos Fernandez was justified.
The Appellate Division First Department vacated the penalty of his termination
of employment at NYCTA, granted the petition to that extent.
The Court noted they were troubled by a lack of transcript to review the record
of the arbitration proceedings, but there was no basis to disturb the arbitrator’s
credibility finding (of guilt to the charges.)
The Court found that the termination of Fernandez’s employment as sanction
for a singled alleged transgression is grossly excessive and SHOCKS OUR SENSE OF
FAIRNESS(emphasis added by the author herein)
( See Matter of Pell v Board of Education 34 NY2snd 222 (1974) . When the
incident at issue occurred, Fernandez had been a NYCTA bus driver for 15 years,
had received consistently positive performance evaluations, and had never been
Moreover by imposing the harsh penalty of termination on its employee for a
first incident, NYCTA disregarded its own disciplinary guidelines. NYCTA policy is
found in the collective bargaining agreement between the agency and Fernandez
union, which provides that NYCTA “shall be guided by the principle of progressive
discipline” in the administration of its administration of its disciplinary
Here depriving Fernandez of his livelihood because of a single incident ”is
disproportionate to the misconduct”...or the hard or risk of harm to the agency or
institution, or to the public” (Pell, cited above)See also Matter of Principe v New
York City Dept. of Educ. 94 AD 3 431 (1 st Dept. 2012) termination disproportionate
for petitioner with spotless 5 year record), Matter of Riley v City of N.Y. 84AD3nd
442 (1 st Dept.) termination disproportionate for petitioner with 15 years of service
and good record, Matter of Solis v Department of Educ. 30 AD3rd 532 (Dept.
2006) termination unwarranted for petitioner with “otherwise unblemished 12
Our victory put Mr. Fernandez back to work at NYCTA.
The NYCTA attempted to reargue the unfavorable decision, and deny his return
These motions and attempts to reargue the App. Div. decision for Petitioner all
I have been filing these Article 78, 75 appeals for 40 years with many positive
Call me with any questions.
MARTIN DRUYAN ESQ. 917 861-4836 MD@DRUYANLAW.COM
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