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https://jlm.law.columbia.edu/files/2017/05/34.-Ch.-22.pdf
https://jlm.law.columbia.edu/a-jailhouse-lawyers-manual-12th-edition/
CHAPTER 22
HOW TO CHALLENGE ADMINISTRATIVE DECISIONS USING ARTICLE 78 OF THE
NEW YORK CIVIL PRACTICE LAW AND RULES
Jailhouse Lawyer's Manual
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A Jailhouse Lawyer's Manual 12th Edition
LEGAL DISCLAIMER
A Jailhouse Lawyer's Manual is written and updated by members of the Columbia Human Rights Law Review. The law prohibits us from providing any legal advice to currently incarcerated people. The information is not intended as legal advice or representation nor should you consider it as such. Additionally, your use of the JLM should not be construed as creating an attorney-client relationship with the JLM staff or anyone at Columbia Law School. We have attempted to provide information that is up to date and useful. However, because the law changes frequently, we cannot guarantee that this information is current or correct.
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Preface
Foreword by Justice Thurgood Marshall
Acknowledgments
Table of Contents
Section I: Introduction to the JLM and How to Use It
Chapter 1: How to Use the JLM
Section II: Learning Your Rights
Chapter 2: Introduction to Legal Research
Chapter 3: Your Right to Learn the Law and Go to Court
Section III: How to File a Lawsuit and Learn About Your Case
Chapter 4: How to Find a Lawyer
Chapter 5: Choosing a Court and a Lawsuit
Chapter 6: An Introduction to Legal Documents
Chapter 7: Freedom of Information
Chapter 8: Obtaining Information to Prepare Your Case: The Process of Discovery
Section IV: How to Attack Your Conviction or Sentence
Chapter 9: Appealing Your Conviction or Sentence
Chapter 10: Applying for Re-Sentencing for Drug Offenses
Chapter 11: Using Post-Conviction DNA testing to Attack Your Conviction or Sentence
Chapter 12: Appealing Your Conviction Based on Ineffective Assistance of Counsel
Chapter 13: Federal Habeas Corpus
Section V: How to Attack the Conditions of Your Imprisonment
Chapter 14: The Prison Litigation Reform Act
Chapter 15: Inmate Grievance Procedures
Chapter 16: Using 42 U.S.C. § 1983 to Obtain Relief from Violations of Federal Law
Chapter 17: The State's Duty to Protect You and Your Property: Tort Actions
Chapter 18: Your Rights At Prison Disciplinary Proceedings
Chapter 19: Your Right to Communicate with the Outside World
Section VI: How to Attack Your Conviction, Sentence, or Prison Conditions at the State Level
Chapter 20: Using Article 440 if the New York Criminal Procedure Law to Attack Your Unfair Conviction or Illegal Sentence
Chapter 21: State Habeas Corpus: Florida, New York, and Michigan
Chapter 22: How to Challenge Administrative Decisions Using Article 78 of the New York Civil Practice Law and Rules
Section VII: General Health and Safety Rights in Prison
Chapter 23: Your Right to Adequate Medical Care
Chapter 24: Your Right to be Free from Assault by Prison Guards and Other Incarcerated People
Chapter 25: Your Right to be Free from Illegal Body Searches
Chapter 26: Infectious Diseases: AIDS, Hepatitis, Tuberculosis, and MRSA in Prison
Section VIII: Issue-Specific Rights
Chapter 27: Religious Freedom in Prison
Chapter 28: Rights of Incarcerated People with Disabilities
Chapter 29: Special Issues for Incarcerated People with Mental Illness
Chapter 30: Special Information for Lesbian, Gay, Bisexual, Transgender, and/or Queer Incarcerated People
Chapter 31: Security Classification and Gang Validation
Chapter 32: Parole
Chapter 33: Rights of Incarcerated Parents
Chapter 34: The Rights of Pretrial Detainees
Chapter 35: Getting Out Early: Conditional and Early Release
Chapter 36: Special Considerations for Sex Offenders
Chapter 37: Rights Upon Release
Chapter 38: Rights of Youth in Prison
Chapter 39: Temporary Release Programs
Chapter 40: Plea Bargaining
Chapter 41: Special Issues of Incarcerated Women
Section IX: Appendices
Appendix I: Addresses of Federal Courts & New York State Prisons and Their Respective Federal Judicial Districts
Appendix II: New York State: Filing Instructions & Addresses of New York State Courts
Appendix III: Addresses of New York District Attorneys
Appendix IV: Directory of Legal and Social Services for Incarcerated People
Appendix V: Definitions of Words Used in the JLM
Appendix VI: Definitions of Latin Words Used in the JLM
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annulling the ________________ (Describe administrative determination sought to be reviewed.
676 A JAILHOUSE LAWYER'S MANUAL Ch. 22
4. Challenge Legal Authority for State Action (Prohibition)
The fourth type of Article 78 proceeding arises when you challenge the state as having gone beyond its
lawful authority.
In this type of proceeding, you ask the court to stop an official from acting beyond his
authority or jurisdiction.
This type of case is difficult to prove and rarely successful in court.
Nevertheless, if you feel that an official is going to act in a way that will injure you, and the official is not allowed by law to act in such a way, this type of Article 78 proceeding can be a way to prevent the action.57
C. When You Can Obtain Relief Under Article 78
There are three important limitations on the use of Article 78 that you keep in mind, or your case may be
dismissed. They are described below.
1. You May Only Challenge Administrative Decisions
Article 78 may only be used to challenge administrative determinations of a New York state officer or
agency.
It generally cannot be used to challenge the decisions of a judge or a court, such as criminal convictions or criminal sentences. However, Article 78 can be used to challenge other types of actions by judges.
Article 78 may be used to challenge a punishment a court gives for contempt of court.58
It can also be used where the judge made a decision that exceeded his authority (this is called "prohibition"—see Part B(4)), or to challenge a judge's failure to act (called "mandamus"—see Part B(1)).
2. You Must Exhaust All Administrative Remedies
The administrative determination you challenge must be final.59
This means that a decision-maker must have caused you an actual injury of some sort.
There have been many cases dealing with the question of what kinds of decisions are considered final.
If possible, you should read the Practice Commentary and Notes of
Decisions of Section 217 of N.Y. C.P.L.R. to see how courts have decided the issue.
In addition to the decision being final, there must be no way for you to appeal the decision any further within the administrative agency. 60
If it is possible for you to appeal the decision to a higher state officer, you must do so before seeking Article 78 relief.
In other words, you must go through every normally available step in the administrative process before seeking Article 78 relief.
This is called "exhaustion of remedies."
If you have failed to follow the normal administrative procedure to the fullest extent possible, the court may refuse to hear your Article 78 petition.61
This means that it is important to be aware of the ways in which you can challenge or appeal the decisions of prison officials within the prison or corrections system.62
There are specific time limits for bringing appeals at each level of the administrative appeals process. You should be aware that many administrative appeals require you to act quickly.
For example, you must bring a 57. See Schumer v. Holtzman, 60 N.Y.2d 46, 51, 454 N.E.2d 522, 524, 467 N.Y.S.2d 182, 184 (1983) (holding that a request for prohibition under Article 78 is only appropriate if you are asking the court to prevent an official from acting beyond his or her authority).
58
. See Williams v. Cornelius, 76 N.Y.2d 542, 546, 563 N.E.2d 15, 17, 561 N.Y.S.2d 701, 703 (1990) (holding that Article 78 petitions may be used to challenge a summary contempt order, where a summary contempt order is one in which there is "no right to an evidentiary hearing, the right to counsel, or the opportunity for adjournment to prepare a defense."
This challenge to a summary contempt order may only be issued when the actions giving rise to the contempt order take
place in the "immediate view and presence" of the judge and the action disrupts the court proceeding.
See also Loeber v. Teresi, 256 A.D.2d 747, 748–49, 681 N.Y.S.2d 416, 418 (3d Dept. 1998)
(holding that an Article 78 petition can be used to challenge a judge's summary contempt order).
59. N.Y. C.P.L.R. 7801(1) (McKinney 1994).
60
. See Essex County v. Zagata, 91 N.Y.2d 447, 453, 695 N.E.2d 232, 235, 672 N.Y.S.2d 281, 284 (1998) (holding
under New York Civil Practice Law and Rules 7801 that an agency determination is final when:
(1) the agency's position is definitive;
(2) the position inflicts actual injury; and
(3) no further agency action can remove or lessen the injury).
61
. See Alamin v. N.Y. State Dept. of Corr. Services, 241 A.D.2d 586, 587, 660 N.Y.S.2d 746, 747 (3d Dept. 1997)
(requiring petitioner to exhaust administrative remedies before initiating an Article 78 petition);
McCloud v. Coughlin, 102 A.D.2d 854, 854, 476 N.Y.S.2d 630, 631 (2d Dept. 1984) (dismissing Article 78 petition because petitioner had not appealed superintendent's disciplinary ruling to the Commissioner of the Department of Correctional Services).
62
. See Farinaro v. Leonardo, 143 A.D.2d 492, 492–93, 532 N.Y.S.2d 601, 602 (3d Dept. 1988) (holding that a
prisoner who was informed of the proper administrative procedure to challenge decision of prison officials to withhold martial arts catalog from him and did not follow such procedure had failed to exhaust administrative remedies, and could not obtain judicial relief).
Ch. 22 HOW TO CHALLENGE ADMINISTRATIVE DECISIONS USING ARTICLE 78 677
grievance within 21 days of the event that gives rise to the grievance.63
For more information on Inmate Grievance Procedures, see JLM, Chapter 15.
If you are appealing the outcome of a disciplinary hearing, you
must submit an appeal in writing to the superintendent within 72 hours of the decision.64 The superintendent must then issue a decision within 15 days of receiving the appeal.
If you are appealing a Superintendent's Hearing decision, you must appeal to the Commissioner within thirty days of the decision.65
The Commissioner must issue a decision on your appeal within 60 days.
If you fail to meet a deadline for an appeal, you may be prevented from bringing an Article 78 petition on the same claim.
If you do not receive a response by the time limit, you can proceed to the next level of appeal.66
There are a few exceptions to the general rule requiring exhaustion of administrative remedies, but keep
in mind that these exceptions are rarely applied by the court and normally should not be relied upon.
The first exception is in cases where an appeal would have no chance of success.
In Martin v. Ambach, 67 the court observed that the finality requirement of N.Y. C.P.L.R. 7801(1) may be relaxed if the pursuit of an administrative remedy "reasonably appears to be futile." 68
Note that courts rarely find that an appeal "reasonably appears to be futile." 69
A second exception to the exhaustion requirement may arise when a non-final order will result in
"irreparable harm" without court intervention.70
A "Non-final order" is an order from the court that does not end or dispose of a case or legal issue, and is generally not appealable.
"Irreparable harm" is harm that cannot be changed or reversed after it has been done.
Thus, if harm will take place before you can appeal a decision, you can file a motion under Article 78 to ask the court to intervene to prevent the harm.
Types of interventions could include a transfer out of your facility or a decision of a disciplinary hearing board, which might take effect before you have a chance to appeal.
Additionally, in a case that was not brought by a prisoner, a court has ruled that exhaustion is not required if someone is seeking medical benefits to which he is entitled under state and federal law because it "creates an unnecessary hardship" on "poor, needy individuals."71
The third exception is in cases challenging an agency's action as beyond its powers.
In Dineen v.Borghard,72 the court held that the exhaustion rule "need not be followed when an agency's action is alleged to be unconstitutional or wholly beyond its powers." 73
This means that if your Article 78 petition claims that a prison official acted unconstitutionally in depriving you of some protected right, it is possible that a court may find that you do not need to have first exhausted all of your administrative appeals.
This exception is a limited one and, as one court has pointed out, "[t]he mere assertion that a constitutional right is involved will not excuse the failure to pursue established administrative remedies that can provide the requested relief." 74
63. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5.
64. N.Y. Comp. Codes R. & Regs. tit. 7, § 253.8 (2015).
65. N.Y. Comp. Codes R & Regs. tit. 7, § 254.8.
66
. See,
e.g., N.Y. Comp. Codes R. & Regs. tit. 9, § 8006.4(c) (if you appeal a parole decision and the appeal unit does
not issue its findings within four months of receiving your appeal, you are considered to have exhausted your
administrative remedies and may bring your appeal to the courts).
67. Martin v. Ambach, 85 A.D.2d 869, 446 N.Y.S.2d 468 (3d Dept. 1981),
aff'd, 57 N.Y.2d 1001, 443, N.E.2d 953, 457
N.Y.S.2d 478 (1982).
68. Martin v. Ambach, 85 A.D.2d 869, 870, 446 N.Y.S.2d 468, 470 (3d Dept. 1981) (noting that the lower court had
relied upon such reasoning).
69
. See Martin v. Ambach, 85 A.D.2d 869, 871, 446 N.Y.S.2d 468, 470 (3d Dept. 1981) (stating that this should be
the exception rather than the rule, occurring only when necessary to avoid irreparable harm).
See also Practice
Commentary to N.Y. C.P.L.R. 7801(7) (McKinney 1994) (stating that the three exceptions lie in the court's discretion and
"are rarely invoked in the context of Article 78 review").
70. Martin v. Ambach, 85 A.D.2d 869, 871, 446 N.Y.S.2d 468, 470 (3d Dept. 1981).
71
. See Lutsky v. Shuart, 74 Misc.2d 436, 438, 342 N.Y.S.2d 709, 712, n2 (Sup. Ct. Nassau County 1973),
aff'd, 43
A.D.2d 1016, 351 N.Y.S.2d 946 (2d Dept. 1974) (holding that welfare recipient seeking medical benefits does not have to
exhaust administrative remedies before bringing an Article 78 petition);
see also Valdes v. Kirby, 92 Misc.2d 367, 371, 399
N.Y.S.2d 972, 974–75 (Sup. Ct. Suffolk County 1977) (holding exhaustion not required for petitioner seeking housing
shelter allowance and facing possible eviction).
72. Dineen v. Borghard, 100 A.D.2d 547, 473 N.Y.S.2d 247 (2d Dept. 1984) (plaintiff was a public employee claiming
that his work was unlawfully reassigned to others in order to pressure him to quit his job and because the agency's actions
were beyond its powers, the administrative exhaustion rule did not apply).
73. Dineen v. Borghard, 100 A.D.2d 547, 548, 473 N.Y.S.2d 247, 249 (2d Dept. 1984) (holding plaintiff was not
required to pursue an administrative remedy since he was alleging violations of his statutory and constitutional rights).
74. Levine v. Bd. of Educ. of N.Y., 186 A.D.2d 743, 744, 589 N.Y.S.2d 181, 183 (2d Dept. 1992)
For example, in
Levine v. Board of Education, a court rejected a teacher's claim that the exhaustion
requirement did not apply due to constitutional violations. The court held that mere assertion of a
constitutional violation will not excuse one from pursuing relief through the established administrative
agency. The court also stated that the asserted constitutional violation exception did not apply when the claims
were based on factual issues that the court could not review without the necessary factual record established
by the administrative agency.75
Therefore, it is possible that a court will allow your Article 78 motion to proceed without exhaustion of all
the administrative remedies when you can demonstrate: (1) futility of the administrative remedy, (2)
irreparable harm in absence of prompt judicial intervention, or (3) unconstitutional action. Remember that
these exceptions rarely work, and it is safest to pursue all possible appeals within the agency or prison system
before filing an Article 78 proceeding in court.
https://casetext.com/case/matter-of-valdes-v-kirby
Matter of Valdes v. Kirby, 92 Misc. 2d 367, 399 N.Y.S.2d 972 (N.Y. Sup. Ct. 1977)
Matter of Valdes v. Kirby
Opinion
September 19, 1977
Leonard S. Clark for petitioner.
Howard E. Pachman, County Attorney (Jerome A. Campo of counsel), for respondent.
LEON D. LAZER, J.
Petitioner in this article 78 proceeding, which has been referred to this court by Mr. Justice LIPETZ, is a recipient of public assistance in the home relief category.
She seeks a judgment declaring that the denial of her request for a shelter allowance in the sum of $190 per month by the respondent Commissioner of Social Services of Suffolk County (the "commissioner") was unlawful and directing that he grant her request.
The respondent has interposed three objections in point of law in his answer:
(1) that petitioner has not exhausted her administrative remedies;
(2) that no emergency situation exists which would excuse her from doing so; and
(3) that if such a situation does exist emergency assistance may be available.
Petitioner asserts that she will suffer irreparable injury if she is compelled to seek a fair hearing or even emergency assistance since her rent is due and she may be evicted.
Petitioner formerly resided with her mother and received $94 per month for her regular monthly needs and $29.20 for the payment of a portion of the taxes, insurance and utilities on her mother's home.
When her mother closed her home petitioner moved alone to a two-room furnished apartment where the rental is $190 per month and includes utilities.
The commissioner's stated reasons for denying her request were that the shelter cost was (1) "over standard for your size family"; and (2) exceeded the "limits imposed by N.Y. State maximum monthly increase."
A handwritten note on the bottom of the form which denied her request states that she would be permitted a grant of $150.
The maximum monthly rental allowance for accomodations with heat as established in the regulations of the State Department of Social Services for one person in Suffolk County is $205 ( 18 NYCRR 352.3 [a]) and thus the commissioner was in error when he determined that the shelter allowance requested by petitioner was "over standard for your size family."
The regulations ( 18 NYCRR 352.3 [a] [1]) provide that "Each social services district shall provide * * * a monthly allowance for rent in the amount actually paid, but not in excess of the appropriate maximum" (emphasis supplied).
The second reason stated by the commissioner for his denial of petitioner's request is equally without merit.
The "maximum monthly increase" referred to is that provided for in subdivision 3-a of section 131-a Soc. Serv. of the Social Services Law (L 1977, ch 77) which provides as follows: "No individual or household shall be granted any increase in monthly shelter allowance during the period commencing April first, nineteen hundred seventy-seven and ending March thirty-first, nineteen hundred seventy-eight, which in the aggregate exceeds the following for each size household:
1 2 3 4 5 6 For each additional person $7 $8 $9 $10 $11 $12 $1 provided, however, no grant, including such increases, shall exceed the maximum shelter allowances established by department regulation pursuant to subdivision two of this section. Any person or household first receiving a shelter allowance for any period after June thirtieth, nineteen hundred seventy-seven, shall be granted a shelter allowance in the amount of rent actually paid up to the maximum shelter allowance, provided that such allowance may be increased by an amount which, together with any rent increases charged to such person or household in the three month period immediately prior to the period for which the first shelter allowance is received, does not exceed the above schedule. Any person who does not receive a shelter allowance for a period of ninety days or less shall, for purposes of this subdivision, be deemed to have been in continuous receipt of a shelter allowance."
The issue here is whether the permitted $7 maximum increase in the shelter allowance for one person is applicable to a situation where the prior shelter allowance consisted of the prorated allowance granted to public assistance recipients sharing a home with "a non-legally-responsible person" ( 18 NYCRR 352.3 [c]) and the request is for rent for separate accommodations.
The cited regulation does not provide for the payment of rent but for the sharing of carrying charges in lieu of rent (Matter of MacGaffick v Lavine, 45 A.D.2d 928).
The new statute (Social Services Law, § 131-a, subd 3-a) provides that "[a]ny person or household first receiving a shelter allowance for any period after June thirtieth, nineteen hundred seventy-seven, shall be granted a shelter allowance in the amount of rent actually paid up to the maximum shelter allowance" (emphasis supplied).
Although petitioner as a "person" received a shelter allowance, the "household" that petitioner has been forced to establish by virtue of the closing of her mother's home is one that did not exist before (cf. Matter of Robinson v Lavine, 81 Misc.2d 1047, affd 50 A.D.2d 858).
Since one person can constitute a "household" under the statute, the use of the disjunctive in the statute would create a mere redundancy unless the legislative intent was to apply the exception to the maximum increase provision to either a person who first receives a shelter allowance after June 30 or to a newly created household.
Moreover, petitioner is now requesting rent for the first time rather than merely an increase in payments for sharing the carrying charges on shared accommodations. The maximum increase provisions in subdivision 3-a of section 131-a must be deemed inapplicable to such a situation. The respondent commissioner himself conceded that subdivision 3-a of section 131-a is inapplicable when he noted on the application form that petitioner could receive a shelter allowance in the sum of $150 (rather than $36.20, the $29.20 shelter allowance petitioner formerly received plus the $7 increase permitted under the new statute). Where a shelter allowance is first granted to a person or household, the statute mandates that it be in the amount of the rent actually paid up to the maximum permitted under the schedule.
The proceedings are not premature on the ground that petitioner has failed to exhaust her administrative remedies.
In view of the fact that her rent was due on the first of the month and that she faces possible eviction, her success in an administrative proceeding might be meaningless (Matter of Wildstein v Barbaro, 61 Misc.2d 31;
see Matter of Veit v Barbaro, 59 Misc.2d 117).
It is an unnecessary hardship to force the poor and needy to institute administrative proceedings to obtain what they are entitled to under the statute (see Lutsky v Shuart, 74 Misc.2d 436, affd 43 A.D.2d 1016).
https://www.constitutionrights.org/index.php/topic,789.msg7746.html#msg7746
Petitioner is entitled to a declaration that the denial of her request for a shelter allowance was unlawful and to an order directing the respondent to grant her request for a shelter allowance in the sum of $190 per month.
Synopsis
Public assistance recipient sought judgment declaring that denial of her request for shelter allowance was unlawful, and directing that her request be granted. The Supreme Court, Suffolk County, Special Term, Leon D. Lazer, J., held that:
(1) determination by county commissioner of social services, that shelter allowance of $190 per month for individual living alone in accommodations for which rent included heat was in excess of standard allowed, was error;
(2) allowance of $190 per month for rent, including heat, of apartment for individual who previously had resided with her mother and received $94 per month for her regular monthly needs and $29.20 for payment of portion of taxes, insurance and utilities on her mother's home, who had never requested shelter allowance before, and who was forced to establish "household" which did not exist before due to closing of mother's home, did not violate "maximum monthly increase" provision of Social Services Law, and
(3) proceedings by recipient were not premature on ground that recipient had failed to exhaust her administrative remedies, in view of facts that her rent was due on first of the month and that she faced possible evicton, and thus that her success in administrative proceeding might be meaningless.
Judgment entered.
...
https://casetext.com/case/matter-of-wildstein-v-barbaro
Matter of Wildstein v. Barbaro
Summary
In Wildstein v. Barbaro, 61 Misc.2d 31, 304 N.Y.S.2d 531 (Sup.Ct. Nassau Co. 1969), the Nassau County Department of Social Services approved a shelter allowance in excess of the statutory maximum to enable a widow to lease an apartment with special facilities to care for one of her children who suffered from cerebral palsy.
Summary of this case from Viverito v. Smith
See 1 Summary
Opinion
September 29, 1969
Allen Redlich for petitioner.
Morris H. Schneider, County Attorney, for respondent.
DANIEL G. ALBERT, J.
In this proceeding pursuant to article 78 of the CPLR, petitioner seeks a judgment declaring that respondent "is estopped to deny that petitioner's housing needs are $187 a month for so long as petitioner remains contractually liable to pay such rental by the terms of a lease authorized and approved" by a representative of the respondent.
The undisputed facts depict what is believed to be an unusual situation.
The petitioner is a recipient of public assistance.
She is a widow with two children, one of whom is a 13-year-old girl suffering from cerebral palsy, who can only be transported by use of a wheel chair.
In December, 1968, when the maximum shelter allowance for a family of three under the schedule of the Department of Social Services was $140 a month, the Department of Social Services approved a grant of $187 a month to petitioner for shelter needs, so that petitioner could rent the apartment she currently resides in. The apartment is accessible from a ramp-type entrance which makes it possible for petitioner to wheel her daughter in and out of her home.
At the time she rented the apartment, petitioner admittedly advised her caseworker that the landlord required her to sign a one-year lease fixing the rent at $187 a month.
Petitioner was advised to sign the lease, which she did, and the Department of Social Services paid petitioner the first month's rent and the amount of the security deposit required under the lease.
The department continued to pay the rental through June, 1969. In July, 1969, the maximum allowable shelter allowance for a family of three was raised to $145 a month. However, in June of this year, petitioner was advised by the Department of Social Services that effective July 1, 1969, it would no longer pay any rental in excess of the scheduled maximum rent and, therefore, the amount of petitioner's monthly grant would be reduced by $42. Petitioner's grants for July, August and September of this year have been reduced in that amount.
While conceding substantially all of the material facts as alleged in the petition, the respondent contends that, as the result of amendments to subdivision 1 of section 131-a Soc. Serv. of the Social Services Law and the regulations of the State Department of Social Services promulgated pursuant thereto, he no longer has any discretion to approve or budget shelter allowances in excess of the rent allowance schedule.
The regulations formerly provided that "Rent shall be allowed `as paid' up to the maximum of [the] schedule [filed by the local public welfare agency with the State Department]" (18 N.Y.CRR, former section 352.4 [e] [1]) (emphasis added).
The present regulations state (18 18 NYCRR 352.4 [a] [6] [ i ]) that "An allowance for rent shall be made in the amount actually paid by the recipient but not in excess of the appropriate maximum of [the] schedule" (emphasis added).
It is somewhat difficult to see how the change in the portion of the regulations italicized by the court has the effect that respondent attributes to it. Nevertheless, without determining whether respondent does, in fact, retain discretion to provide allowances for rentals in excess of the scheduled amounts where there are special circumstances, it seems to the court that since respondent exercised such discretion at the time petitioner executed the lease involved herein and authorized her to do so on the basis that the Department of Social Services would grant her a sufficient shelter allowance to meet her obligations under the lease, the respondent is not required by the new regulations referred to supra to effect an immediate reduction in petitioner's grant and may not reduce the amount of that grant while petitioner remains obligated under the lease.
Nor does it appear to the court that this proceeding is premature on the ground that petitioner has failed to exhaust her administrative remedies.
In view of the special circumstances herein, were petitioner to seek administrative relief successfully, her "victory" might be meaningless since an administrative hearing and determination could never be accomplished quickly enough to prevent eviction proceedings which are currently pending.
Accordingly, judgment will be granted directing the respondent to pay petitioner the additional $42 a month for shelter needs effective July 1, 1969 until the termination of the lease signed by petitioner.
1. Starting the Proceeding
You begin an Article 78 proceeding by filing either a Notice of Petition or an Order to Show Cause
(described below).
Whichever you choose, you will also need to file supporting affidavit(s), a Verified Petition,the filing fee, the Request for Judicial Intervention, and the Request for an Index Number.84 The following
sections will explain how to do each of these things.
"Filing" in an Article 78 proceeding means delivery of the Verified Petition to the court clerk with the
required fee.85
You should file your Article 78 petition in the supreme court for the county in which the administrative
decision you are challenging was made, the county where the administrative appeal was decided, or the countyin which the respondent has his main office (usually Albany County).86
In the Order to Show Cause, you should ask the court to allow you to serve the respondents and the
Attorney General by mail. Be sure to specifically include a request to the judge to allow service by mail.
In the affidavit attached to your Order to Show Cause, you should explain why you need an Order to Show Cause
n your Order to Show Cause, you must indicate the date by which you will mail or deliver (serve) copies
of the papers to the respondent and to the appropriate Attorney General's office
Your Notice of Petition can be dismissed if you do not provide a return date.89
Remember, an Order to Show Cause can speed up the hearing date so that your case can be heard in less than 20 days.
(b) The Respondents
You should name as the respondent the official or agency whose action or inaction[b/color]n you are challenging.
If you name the official, you should also include his or her formal title.
If you do not, you will need to substitute the name of the new official if someone new takes that job.9
You will have to serve documents on all of the parties you list as respondents
c) Stay
If you request and the judge grants a stay against the respondent, the official or agency's decision that you are challenging cannot be enforced until after your petition has been heard.91
For example, if you are challenging a decision to place you in solitary confinement, you might ask the judge for an order that you not be placed there while you are waiting for a decision on your petition.
Without a stay, your time in solitary might be up before the judge decides your petition, and the only thing you could then accomplish would be to have the decision "expunged" (removed) from your records.
If you want a stay, you must ask for it in the Order to Show Cause that you send to the court
3. Article 78 Petition
The core of your Article 78 papers is the verified petition.
The petition identifies the parties, explains the basis for "venue" (place where the lawsuit is filed or heard) in a particular county, and states the facts of your case, your legal claims, and the relief you are asking the court to give you.
Relief simply means what you are asking the judge to do.
You should submit an affidavit (a sworn statement by you or another person) to support the
facts in the petition.
You can also attach copies of documents relating to your case.
Be sure that you think carefully in advance and make the strongest arguments possible when you draft
your petition.
For example, if the Board of Parole has treated you differently from other prisoners, emphasize
that it is unfair for the Board to treat you differently.
Also, if there are standard procedures or regulations that you know were not followed in your case, you should point this out.
If you claim that the agency did not follow its procedures, you should also claim that the decision it reached may be wrong because of this.
4. Verification of Petition
Your petition must also include a "verification"—a short statement in which you swear to the truth of the
statements in your petition.
It must include the statement that what is alleged in your petition
"is true . . . except as to those matters alleged on information and belief and that as to those matters [insert your name] believes them to be true."92
You should use this exact language and sign your petition in front of a notary.
5. Discovery: Use of the "Notice to Admit"
An Article 78 proceeding usually does not involve discovery (the part of a lawsuit where the parties
exchange facts).
Formal discovery tools, such as "depositions" (official interviews of people) and
"interrogatories" (written questions submitted to people who may have relevant information), can only be used if the court gives you permission.
If the court finds there are issues of fact that need to be resolved, it may grant you permission to carry out discovery.
An example of an issue of fact is a dispute over whether someone was present at the administrative hearing.
See JLM, Chapter 8, "Obtaining Information to Prepare Your Case:
The Process of Discovery," for more information on discovery.
The one form of discovery that you can use without first seeking permission from the court is
the "Notice to Admit."
It can be used only if the respondent is an individual, not the state.
You can use a Notice to
Admit to ask the respondent to admit:
(1) The genuineness of any paper or document,
(2) The correctness or accuracy of a photograph, or
(3) The truth of any matters of fact about which you believe there can be no dispute and which are
within the knowledge of the respondent or can easily be found by him on reasonable inquiry.93
The Notice to Admit is particularly useful in cases where you are making factual allegations or where no transcript of the administrative proceedings exists.
The Notice to Admit should be a separate document.
This document should be a list of questions.
Each question should be divided into short parts answerable with yes or no.
Do not write long questions with many parts because then the respondent could say false to all of them, even though most or part of a question was true.
Also, be sure to list and number your questions.
You should send these questions to the respondent, the Attorney General's Office, and the court with your petition.
7. The Index Number and Filing Date
The court will tell you your index number after you file the documents listed in Part E(2) below. Once the
court tells you the index number, you must write it on the line next to where it says "Index No., on all the
documents that you serve to the respondent or submit to the court.107
If you serve your Notice of Petition or Order to Show Cause and Verified Petition without an index number or filing date (for example, because filing has not occurred), the paper has no legal weight.
The court will act as if you never did anything. However, the
court might allow you to amend your petition if you made a mistake in the filing process (for example, if you
purchased the index number but forgot to put it on your other documents).108 On the other hand, if you make
a mistake in the filing process, the court might dismiss the entire proceeding. You could still refile, but only684 A JAILHOUSE LAWYER'S MANUAL Ch. 22
after obtaining a new index number. You can do this either by filing a new motion for poor person status or
paying the fee again. If you must refile, you should be aware of statute of limitations concerns. See Part C(3)
above for a discussion of statute of limitations.
8. Serving the Respondents and the Attorney General
"Serving" means giving the respondents and the Attorney General's Office a copy of every document and
exhibit that you sent to the court clerk.
Remember that for Article 78 proceedings, you must serve both the
official (person or people) or agency you have named AND the correct office of the New York State Attorney
General.
Unless the court directs otherwise, the Attorney General must be served by personal service and the
official or agency by personal service or certified mail, return receipt requested, with "URGENT LEGAL
MAIL" written on the front of the envelope in capital letters.
You may not serve the respondents until you receive an index number from the court.
You must write the index number and the court's designated date of filing (which you can find in the information that the clerk sends you) on the first page of every item that you send to the respondents. You must also tell the Attorney General the name of the judge and the date of the hearing if available. You should include the date of the hearing and the name of the judge on every paper that you send to the respondent if the court clerk sends you this information.
You must be careful to serve your petition on the official or agency you have named as respondent and to
the New York State Attorney General.109 (The Attorney General will represent the state in the proceeding.)
To recap, if you are using an Order to Show Cause, the respondents must receive these items before the
time specified by the court in the Order to Show Cause when the judge signs and mails it back to you. If you
are using a Notice of Petition, the respondents must receive these items at least twenty days before the court date.110
A Verified Petition, supporting affidavits, and either an Order to Show Cause or a Notice of Petition
must be served within four months and fifteen days after you receive the decision.111
It is important to serve papers far enough ahead so that there is time to complete the proof of service requirement, which also must be completed in four months and fifteen days.112
You must serve the Attorney General by personal service unless you get special permission to do otherwise.113 You can get this special permission by making a request for it in your Order to Show Cause.
If you are serving a state agency, you can serve either the chief executive
officer or a person assigned by him to receive service.
You have two options for serving the state officer:
personal delivery or certified mail, return receipt requested.
If you choose certified mail, you must write "URGENT LEGAL MAIL" on the front of the envelope in capital letters.114 Service is not complete until the certified mail is received by the agency to which it is sent.
As a prisoner, you may have a great deal of trouble accomplishing service.
The two most common means of service are personal service and mail.115
(a) Personal Service
Personal service is when someone (the "server") actually approaches, identifies, and personally hands a
person the paperwork. The server then describes and swears in an affidavit to exactly what she did, and this
affidavit is turned over to the court to demonstrate proof of service.
A prisoner could serve the agency personally either by asking anyone on the outside who is not a party and is over eighteen years of age to hand over the paperwork, or by hiring a professional service agency (which can be expensive).116
b) Service by Mail
Service by mail is allowed in many situations, but not when suing the government.
For example, you are required to personally serve the Attorney general.
If you are not able to personally serve the Attorney General, you should include an Order to Show Cause requesting authorization to serve on the Attorney General by mail the material that you originally send the court.117 If you cannot serve the state agency by certified mail, you should also include an Order to Show Cause asking to serve the state agency in an alternative manner.
In the Order to Show Cause, you should specifically explain the process you must go through at your institution to mail the documents so that the court will authorize that particular process. If there are any other difficulties in serving process that make it very difficult or impossible to accomplish in time, tell the court right away and ask for additional time.118
In the past, courts have allowed prisoners to use whatever mail services are available to them.
In fact, courts sometimes give prisoners special permission to use mail to serve the Attorney
General, who normally must be served by personal service.119
It is very important that you ask the court clerk about serving process and describe the procedure for mailing at your institution.
Write a note asking the clerk to provide specific instructions on exactly what you have to do to serve.
(c) Service by Filing
A final possibility is to ask if you can serve by filing pursuant to New York Civil Practice Law and Rules
2103(d). 120
This rule is basically a catchall provision that says if no other means are available, service can be
fulfilled by filing the documents you need to serve by mailing them to the court clerk.
Just being in prison is not enough to trigger this provision.
You would have to state a compelling reason why you could not serve in any other manner.
9. Proof of Service
Proof of Service is evidence for the court that you have notified respondents that you are suing them.
It is a form that you send the court stating that you served process.
If someone else has served personally for you, that person must provide you with an "affidavit of service," which is an affidavit explaining the time, date, and circumstances surrounding the event.
Some professional servers may have a certificate that they send to you.
If you serve by mail, you may have to sign an affidavit saying that you mailed it, or you may have to
include a copy of the receipt from certified mail.
If you are allowed to use regular mail, another possibility is to send the court a receipt signed by the respondent indicating that the respondent received the package. This is called an acknowledgment.
Whatever proof of service you have, you should submit it to the court
How to Bring an Article 78 Proceeding
To bring an Article 78 proceeding, you must complete the following steps before the deadlines:
(1) File the items listed below with the clerk of the court where you are bringing the proceeding;
(2) Serve the respondent and the Attorney General's Office; and
(3) File proof of service with the court during the appropriate time period.
1. Deadlines
Four-month deadline for filing in court (Step (1) above): You must file with the court within the statute
of limitations period. If you do not, you will automatically lose your case. Remember, you cannot serve the
respondent (step 2) until you receive an index number. The court sends you an index number after you have
completed step 1. Plan your time accordingly.
Deadline for service and filing proof of service (Steps (2) and (3) above): You must serve both the
respondent(s) and the Attorney General and file "proof of service" with the appropriate court within four
months and fifteen days after you receive the decision you are challenging. It will take some time to file proof of service, so remember to leave enough time after service to get this accomplished.
Example: If you receive a decision on December 1, 2015, you must file your appeal with the appropriate
court before April 1, 2016. You must serve the respondents and the Attorney General's Office and file proof of
service with the court before April 15, 2016.
Ch. 22 HOW TO CHALLENGE ADMINISTRATIVE DECISIONS USING ARTICLE 78 687
2. Procedure
(a) Filing with the Court
As mentioned above, you need to send to the county Supreme Court clerk one original and one copy of each
of the following:
(1) A Notice of Petition or an Order to Show Cause;
(2) A Verified Petition;
(3) All exhibits and supporting affidavits attached to the petition;
(4) Either the full filing fee or an affidavit that supports your claim that you cannot afford to pay the
full filing fee Poor Person Relief .
See discussion in Part D(6) above. If the court approves your request, it will charge
you between fifteen and fifty dollars; (old fees)
(1) Caution: If you fail to enclose either the full fee, or the reduced fee and the poor person's
motion and affidavit, you will not get an index number. Without the index number, you cannot
proceed with your claim.
(5) A "Request for Judicial Intervention" ("RJI").
Different courts apply different rules on these, so
check with your court clerk to make sure you have complied with the RJI rules for your court;125 and
(6) A "Request for an Index Number."
Mail these items to the correct court clerk and wait for an index number. After you receive the number,
serve the respondents and Attorney General with the proper paperwork. You can make the copies by hand.
(b) Serving the Respondents and the Attorney General's Office
If you are using an Order to Show Cause, the respondents must receive these items before the time
specified in the Order.
If you are using a Notice of Petition, the respondents must receive the items at least
twenty days before the court date.
NOTE: If you are permitted to serve papers by mail, you must add five days
to the deadline.
So, you would mail your papers at least twenty-five days before the court date.126
(c) Proof of Service
It is important that you file proof of service on each respondent and the Attorney General on time. Without
a timely filing, the court will dismiss your case.
(d) Refiling Your Petition
If your case is dismissed because you did not file proof of service on time, you have fifteen days from the
date of dismissal to refile your petition and serve the respondents and the Attorney General.
Note that, not only will you have to pay the filing fee again, but you will also have to repeat the entire process[/b]
3. How to Get Help from a Lawyer
Courts have the power, under Section 1102(a) of the New York Civil Practice Law and Rules, to appoint a
lawyer for you, but they do not have to.127
If you would like a lawyer, include a request for a court-appointed attorney in your request for a fee reduction or waiver.
You can also contact the agencies in JLM, Appendix IV, to see if they know a lawyer who will represent you for free.
You should also read JLM, Chapter 4, "How to Find a Lawyer."
4. The Judgment
The court's decision about your Article 78 petition is called a judgment.
The court has the power to render any judgment that it feels is appropriate.
It can modify the decision of the administrative body, cancel it, make an entirely different decision, or send the case back to the administrative agency for a new hearing or decision
(this is called a remand to the administrative agency).128
F. How to Appeal Your Article 78 Decision
If you lose your Article 78 proceeding and wish to appeal to the Appellate Division of the New York
Supreme Court, professional legal help is important.129
You can request that the Appellate Division assign you an attorney.
Appealing an Article 78 decision is much more complicated than filing a petition in the New
York Supreme Court.130
If you are thinking of appealing, you must serve a "Notice of Appeal" upon the New
York State Attorney General and file the Notice with the court within thirty days of the entry of judgment
denying your Article 78 petition.131
Note that you must file the Notice of Appeal with the Supreme Court that decided your case, not with the Appellate Division.
You should serve the Notice of Appeal first, and then file the Notice with proof of service.
If you do not serve and file the notice of appeal within thirty days of the denial of your petition, the denial will be final and you will not be allowed to appeal it with or without a lawyer.
If you win in Supreme Court on your own, and the respondent files an appeal to the Appellate Division,
you should petition the Appellate Division as soon as possible to appoint a lawyer for you on appeal.
See the sample requests at the end of this Chapter.
The respondent can get an automatic stay of the decision pending the outcome of the appeal.132
This means the Supreme Court decision in your favor will not go into effect until the appeal has been decided.
You can then move to have the court vacate (dismiss) the stay.
1. Where to Appeal
The Appellate Division of the New York Supreme Court has four departments. Each of these departments
covers a different portion of New York State.
Your appeal will take place in the department of the Appellate
Division that contains the county where your Article 78 petition was decided against you.133
Each of the four departments can have specific rules about the time limits and process of filing and proceeding on an Article 78 appeal, so you must be sure to find out what, if any, specific documents or actions are required by your department for each step of your appeals process.134
2. Filing a Notice of Appeal ("Taking the Appeal")
Your first step in appealing an Article 78 decision is serving a Notice of Appeal on the Attorney General
and filing the Notice of Appeal with the Clerk of the county where your judgment was decided, with proof of
service upon the Attorney General.
In your notice, you must explain five important things:
(1) The decision that you are appealing;
(2) Which judge made the decision;
(3) The date on which the decision was made;
(4) What date the judgment was filed with the County Clerk; and
(5) What parts of the decision you want to appeal (you can appeal part of or the whole decision).
A filing fee of $315 may be required to file your notice, but you can request a reduced fee if you are unable to pay in full.135 (You may serve your Notice of Appeal to the court and the Attorney General by mail;
see Part D( 8 ) above for information on serving documents.) Remember, you must serve and file the notice of appeal within thirty days of your petition's denial, or the decision will be final and you cannot appeal.136
3. Putting Together Your Record
In order for your appeal to go forward, you will need a record of your case so far.
The record will include all of the information that has been filed in your case, except for any briefs that were filed.
A record will likely have your original Article 78 petition, the answer from the Attorney General, your reply, if any, the exhibits for both parties, and all decisions and judgments made by the court that heard your case.
It may also contain the transcript of the proceedings.
You will also need to add a statement including the following information:
(1) The index number of your case;
(2) The full names of the original parties and any change in parties;
(3) The court and county in which the proceeding began;
(4) The date the proceeding started and the dates when you served your pleadings;
(5) A brief description of what you are trying to do (appeal the decision in your case) and why;
(6) Whether the appeal is from a judgment, an order, or both, the dates of whatever judgments or orders
you are appealing from, and the name of the judge who made the decision; and
(7) A statement about which method of appeal you are using, either a full-record appeal or an original
record appeal (which means you will not have to put together the record for your case yourself).137
Each of the four departments has different rules about what needs to be in the record for an appeal. 138
Generally, you should follow these two steps. First, assemble all documents listed above. Then, request the
Appellate Court to subpoena your record from the lower court.
(Though not all appellate courts are willing to obtain original records from the lower court, a court will usually do this for a pro se prisoner with poor person status.)
Otherwise, you can read and follow the court rules for the specific department you are in.
4. Writing Your Brief
To proceed with your appeal you will also have to write a brief, a document including all the legal reasons the court should not have decided against you in your Article 78 petition.
You must be as specific as possible about your reasons and should cite the statutes, regulations, and cases supporting your decision.
You must also be specific about why the judge made the wrong decision in your case.
Your brief will likely need to contain
a cover page with information about your case (such as the case name, docket number, lower court, and
appellate court), as well as your name and address.139 You will need to send the same number of copies of this
brief to the court and the Attorney General as you are required to send of the record.
5. "Perfecting the Appeal": Submitting All Necessary Documents
To proceed in your appeal, you must do what is called "perfecting the appeal," which means submitting
every document required by the court in which you are appealing, including the record, brief, and any other
document your department requires.
Each department has a time limit within which to complete perfecting
the appeal. 140
6. The Reply to Your Appeal
Once your brief is filed, the court will tell you when your case will be heard.
When the court requires the Attorney General to file a brief on your case, you may file a reply brief, usually within a few days of receiving the Attorney General's brief.141
You only need to file a reply brief if there are any issues raised by the Attorney
General's brief that your first brief did not cover, or to show why the arguments and cases used by the Attorney General are weaker than your own.
You do not need to restate the points you raised in your original brief.
Some weeks after you have filed your reply brief, the court will inform you of its decision.
G. Conclusion
Article 78 is available to appeal decisions by state officials or agencies but not courts.
You may use it only when you have exhausted other remedies.
Since Article 78 petitions are your last chance to challenge
administrative decisions, pay attention to Part A's requirements and Part D's procedures for filing or
appealing a petition.
Remember, you can only challenge decisions or actions you think are illegal, not just
unfair.
If you are unsure what type of petition is available, read Part B's possible complaints and actions, and Part C's limits on what you can challenge.
Appendix A's sample forms and instructions will help you prepare a petition
ORDERED that
VACATING and setting aside Respondent's determination of [mm/dd/yyyy] because Hearing is null and void];153
DIRECTING Respondent to [expunge all entries of saidHearing and the resulting
disposition thereof from all of petitioner's records and restore petitioner in all respects to the status he enjoyed prior to the commencement of said ,,,s Hearing];154
GRANTING such other and further relief as the Court may deem just and proper.
It is further
ORDERED that pending the hearing of this special proceeding and pursuant to section 7805 of the N.Y.
Civil Practice Law and Rules, Respondent and all other officers, employees, agents, attorneys and persons
working in active concert or participation with Respondent are stayed and prohibited from taking action
related to or enforcing Respondent's determination of , 20 .155
It is further
ORDERED that service of a copy of this order, together with the papers upon which it is granted, upon
both the Respondent 156 and the Attorney General, by mail, on or before
, 20 ,157 shall be deemed sufficient.
A-2. AFFIDAVIT IN SUPPORT OF ORDER TO SHOW CAUSE
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF
X
In the Matter of the Application of :
:
, : AFFIDAVIT IN
Petitioner, : SUPPORT OF ORDER
: TO SHOW CAUSE
- against - :
: Index No.
, :
Respondent, :
:
For a Judgment Pursuant to Article 78 :
of the Civil Practice Law and Rules :
X
STATE OF NEW YORK )
COUNTY OF 159 ss: )
I, ,160 being duly sworn, depose and say:
1. I am the petitioner in the above-entitled proceeding.
2. I make this affidavit in support of my annexed application for an Order to Show Cause to prosecute
the attached petition pursuant to Article 78 of the Civil Practice Law and Rules which challenges
.161
3. 162
4. Petitioner seeks to proceed by Order to Show Cause rather than by Notice of Petition because
.163
159. Name of the county in which you are making this affidavit.
160. Your name.
161. Write in the decision you are complaining about and the date of the decision.
162. This paragraph should state the relevant facts and why the decision you disagree with is wrong. It should
explain the statement of the claims you made in the Order to Show Cause. If there are many issues, organize your statements and arguments into several paragraphs, each dealing with a separate issue. Remember: this is a sworn statement, and it is a crime to include anything you know is a lie.
If you want to include a statement you think is true, but you are not completely sure about it, you can say that you are making the statement "upon information and belief."
163. This paragraph should state why you are using an Order to Show Cause instead of a Notice of Petition. (See
Part D(2) on the difference between an Order to Show Cause and Notice of Petition and the requirements for proceeding
5. Petitioner, being incarcerated, also cannot effect personal service of the within papers and respectfully
requests that timely service by mail be deemed sufficient.
6. Petitioner designates 164 County as the place of venue.
7. No previous application for the relief requested herein has been made.165
8. I have moved by the annexed affidavit for a reduction/waiver of the filing fees.166
WHEREFORE, petitioner respectfully requests that this Court enter an order directing Respondent to
show cause why a judgment should not be made and entered pursuant to Article 78 of the Civil Practice Law
and Rules 167 and granting such other and further relief as the Court may deem just and proper.
_____________________168
_____________________169
Sworn to before me this
__the day of , 20__
_____________________170
NOTARY PUBLIC
by Order to Show Cause.)
You should be sure to explain:
(1) why a hearing is needed as soon as possible, but within 20
days (for example, you may be worried about being placed in solitary confinement before 20 days are up); and
(2) why a stay is needed (for example, you do not want to wrongfully be placed in solitary confinement before you have a chance for the court to review your case).
The reasons for these requests may be similar (as they are in the examples above), but you should explain them both.
It is a good practice to argue that you will be "irreparably injured" if the court does not grant a stay and a speedy hearing — this means that you will be hurt in a way that the court will not be able to fix later if the officer's or agency's decision takes effect before you have had a chance to contest it in the hearing.
164. Name of the county in which you are filing.
165. Make sure you include this statement only if this is the first time you have asked for a review of the decision.
If you have applied for similar relief, explain why it was inadequate or why changed circumstances have caused you to
bring this action.
166. Include this statement if you are attaching an application to request for a reduction or waiver of fees. See
Appendix A-8, Affidavit in Support of Request for Reduction/Waiver of Fees.
167. This paragraph basically states what you would like the court to do for you. You should copy the language of
the paragraphs numbered 1 and 2 of the Order to Show Cause. See Appendix A-1. You can write them out as part of this
sentence without separating them into paragraphs.
168. Sign your name here in the presence of a notary public.
169. Print or type your name and address.
170. This is where the notary public notarizes the affidavit by signing it and fixing his or her official seal to it. If you
have difficulty obtaining the services of a notary public, you should have another prisoner witness your signature. (Use
this technique only as a last resort.) If another prisoner is your witness, you should add at the bottom of the affidavit:
I declare that I have not been able to have this [affidavit] notarized according to law
because [explain here your efforts to get the affidavit notarized]. I therefore declare
under penalty of perjury that all of the statements made in this [affidavit] are true to
my own knowledge, and I pray leave of the Court to allow this [affidavit] to be filed
without notarization.
[Your signature]
...
...
...
Ch. 22 HOW TO CHALLENGE ADMINISTRATIVE DECISIONS USING ARTICLE 78 695
A-3. NOTICE OF PETITION
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF
X
In the Matter of the Application of :
:
, :
Petitioner, :
: NOTICE OF PETITION
- against - :
: Index No.
, :
Respondent, :
:
For a Judgment Pursuant to Article 78 :
of the Civil Practice Law and Rules :
X
To :171
PLEASE TAKE NOTICE that upon the annexed petition of ,172 verified the
[th day of Month], [year]]173 and the annexed affidavit of [NAME],174 sworn to on the [th day of Month],
[year],175 petitioner will apply to this Court on the [th day of [Month], [year]],176 or as soon thereafter as counsel may be heard, for a judgment granting the relief requested in the annexed Petition.
171. Respondent's name in capital letters.
172. Your name.
173. Give the date you sign your petition.
174. List each affidavit (sworn statement) included in your papers. You can, for example, ask witnesses to the facts of your case to make affidavits to strengthen your petition.
175. This is the date on which the witness signed the affidavit.
176. Set a court date far enough ahead so that the respondent will have 20 days notice by the time he or she receives the Notice of Petition and petition.
PLEASE TAKE FURTHER NOTICE that you must serve a verified answer, any supporting affidavits and
documents, and a certified transcript of the record of the proceeding at least five days before this application
is made.177
Petitioner designates County as the place of trial. The basis of venue is
178
179
[Sign your name]
[Print your name]
Dated: , 20 _______
....
...
Ch. 22 HOW TO CHALLENGE ADMINISTRATIVE DECISIONS USING ARTICLE 78 697
A-4. ARTICLE 78 PETITION
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF
X
In the Matter of the Application of :
:
, :
Petitioner, :
: PETITION
- against - :
: Index No.
For a Judgment Pursuant to Article 78 :
of the Civil Practice Law and Rules
Ch. 22 HOW TO CHALLENGE ADMINISTRATIVE DECISIONS USING ARTICLE 78 697
A-4. ARTICLE 78 PETITION
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF
X
In the Matter of the Application of :
:
, :
Petitioner, :
: PETITION
- against - :
: Index No.
, :
Respondent, :
:
For a Judgment Pursuant to Article 78 :
of the Civil Practice Law and Rules :
X
To THE SUPREME COURT OF THE STATE OF NEW YORK FOR
COUNTY:
The petition of ,180 complaining of the Respondent ,181 respectfully
alleges:
1. Petitioner 182 is an inmate at ,183 ,184 New York.
2. Respondent [Ronald R. Roe, Superintendent of Ossining Correctional Facility, is petitioner's legal
custodian and is charged with the overall supervision and administration of Ossining].185
180. Your name in capital letters.
181. Respondent's name(s) in capital letters.
182. Your name.
183. Name of prison in which you are incarcerated.
184. Address of prison.
185. Do not copy the bracketed words. Write the respondent's name and state his or her, or its duties that resulted
in the decision or action you are challenging. If the respondent is the Board of Parole, for example, you could state that
the New York State Board of Parole is responsible for deciding whether or not to parole a prisoner.
3. This petition challenges [disciplinary action taken on June 15, 2000], when respondent, [pursuant to a
Superintendent's Hearing,] had determined to [place him in the Special Housing Unit ("SHU," solitary
confinement) for a period of 120 days].186
4. The within proceeding is brought pursuant to C.P.L.R. Article 78 to challenge the final determination
of , dated .187
5. [On June 9, 2000, while confined to a private room/cell in the infirmary at Ossining Correctional
Facility, petitioner began to feel claustrophobic and believed he was suffering from an asthmatic episode.]188
6. [Corrections Officers Smith and Brown were called to the infirmary to restrain petitioner so that he
could be given an injection to subdue him.]
7. [Petitioner was in an agitated state because he believed that he was going to be given a dose of anti-
psychotic medication.]
8. [Once the officers arrived, they ordered petitioner to stand to the side of the room. He did not comply
with this order.]
9. [Once the officers were in petitioner's room, he raised his hands and spoke to the officers to indicate
that he did not want to receive medication. The officers reported, however, that when petitioner raised his
hands, his fists were clenched.]
10. [The officers then grabbed petitioner and held him while the nurse administered an injection. Then
they escorted petitioner to the Mental Health Unit where he was placed in a special observation cell ("dry
cell").]
11. [On June 10, 2000, while in the observation cell, petitioner was served with a misbehavior report,
charging him with violation of the following inmate rules: 100.11 (attempted assault) and 106.10 (refusing a
direct order). A copy of the misbehavior report is attached as Exhibit 1.]
12. [The Superintendent's Hearing was commenced on June 15, 2000, while petitioner was still confined
in the Mental Health Unit. Petitioner pleaded not guilty to the charges.]
13. [The hearing officer read into the record reports written by Correction Officers Smith and Brown.
Neither report alleged that petitioner had attempted to assault either of the officers. (Copies of these reports
are attached as Exhibits 2 and 3.)]
14. [The hearing officer then found petitioner guilty of both charges and imposed a penalty of 120 days
confinement in the SHU, finding that the mere raising of hands with fists clenched constituted an attempt to
assault.]
15. [Petitioner did not attempt to strike either officer, however. Neither officer's report indicated
otherwise. The reports stated in a conclusory fashion that petitioner "raised his fists in an attempt to strike"
the officers. Without further clarification, this statement is insufficient to conclude that petitioner attempted
to assault either officer. Petitioner was not given an opportunity to present witnesses on his behalf.]
16. [Furthermore, the hearing officer made no inquiry into petitioner's mental state at the time of the
incident or at the time of the hearing, even though the incident arose because the staff had decided petitioner
was out of control and would have to be medicated by force, and even though petitioner was housed in the
Mental Health Unit at the time of the hearing. Petitioner's mental state affected his responsibility for his
actions and his ability to proceed at the hearing.]
17. Respondent's determination was [arbitrary, capricious, and an abuse of discretion] because [the
hearing was held at a time when petitioner was incompetent to proceed on his own behalf, petitioner had no
opportunity to present witnesses on his behalf, and respondent failed to determine petitioner's mental state
Because petitioner had suffered a claustrophobic attack and sudden involuntary medication, he cannot be held
responsible for refusing the direct order.]189
18. [No previous application has been made for the requested relief.]190
WHEREFORE, petitioner respectfully requests that judgment be entered pursuant to Article 78 of the
Civil Practice Law and Rules:
[1. VACATING and setting aside Respondent's determination of June 15, 2000, assigning petitioner to
120 days confinement in the Special Housing Unit (solitary confinement, "SHU") because the underlying
Superintendent's Hearing is null and void;
2. DIRECTING Respondent to expunge all entries of said Superintendent's Hearing and the resulting
disposition thereof from all of petitioner's records and restore petitioner in all respects to the status he enjoyed
prior to the commencement of said Superintendent's Hearing;
3. GRANTING such other and further relief as the Court may deem just and proper.]191
_________________________192
[your name]
Petitioner, pro se.193
Dated: 194
---------------
86. Again, do not copy the bracketed words. You should give the date when you were told about the decision that
you are complaining of and briefly describe the decision. If you are requesting that the court order the respondent to do
something required by law, you should explain that the respondent has not performed its duty.
187. In this paragraph, you should state how your administrative remedies have been exhausted.
188. Again, do not copy the bracketed words. State what happened in your own words, and be sure to include all of
the facts the court might think are important. Then state why you think the decision was incorrectly made. If you know of
a specific law that applies, you should include it in your statement. This section will usually run for several paragraphs;
separate each issue or argument into different paragraphs to make your petition more understandable.
The sample facts and argument in this and following paragraphs have been shortened for reasons of space and clarity.
You will want to go into more detail than is given here
189. Here you should state the particular legal mistake that the respondent made in making the determination that
you are challenging. Refer to Part B of this Chapter for a description of the basic legal reasons why decisions may be
challenged in an Article 78 proceeding. They are:
(1) That the respondent failed or refused to perform a duty required by law (this would include constitutional
violations and violations of Department of Correctional Services regulations);
(2) That the respondent exceeded his or her legal authority;
(3) That the respondent's determination was arbitrary, capricious, or an abuse of discretion; or
(4) That the respondent's determination was not supported by substantial evidence.
You can change these words to fit your case's facts, as long as your complaint falls within one of the Part B categories.
190. In this line, you should state whether you have or have not filed a previous challenge to the administrative
determination that you want the court to review.
191. Here you should state what you want the court to do to correct the respondent's mistake. Be sure to request the
court to declare the determination that you are challenging void (without legal force). You should also specifically request
what needs to be done to set the situation right and undo the mistake, or prevent it from taking effect. For example, you
could request that the court issue an order "DIRECTING respondent to restore petitioner's good-time credit,"
"ENJOINING (prohibiting) respondent from transferring petitioner to any other facility" (if your transfer has not yet taken
place), etc.
192. Sign your name here and print your name underneath.
193. "Pro se" means that you are appearing by yourself, without a lawyer.
194. Write the date when you are signing the papers, followed by your complete mailing address. You must also
include a verification, a sample of which follows
195. A verification is a brief affidavit in which you swear to the truth of the statements you make in a legal paper,
such as an Article 78 petition. Your petition will not be accepted without a verification.
196. Name of the county in which the affidavit is signed, in capital letters.
197. Your name.
198. Sign your name here in the presence of a notary public.
199. This is where the notary public notarizes the affidavit by signing it and fixing his or her official seal to it. If you
have difficulty obtaining the services of a notary public, you should have another prisoner witness your signature. (Use
this technique only as a last resort.) If another prisoner is your witness, you should add at the bottom of the affidavit:
I declare that I have not been able to have this [verification] notarized according to law
because [explain here your efforts to get the verification notarized]. I therefore declare
under penalty of perjury that all of the statements made in this [verification] are true
to my own knowledge, and I pray leave of the Court to allow this [verification] to be
filed without notarization.
[Your signature]
.....
...
A-5. VERIFICATION OF PETITION
VERIFICATION195
STATE OF NEW YORK )
COUNTY OF 196 ss.: )
,197 being duly sworn, deposes and says that deponent is the petitioner in the above-
encaptioned proceeding, that [he/she] has read the foregoing petition and knows the contents thereof, that the
same is true to deponent's own knowledge, except as to matters therein stated upon information and belief,
which matters deponent believes to be true.
198
Sworn to before me this
__th day of , 20__
NOTARY PUBLIC 199
...
-6. REQUEST FOR JUDICIAL INTERVENTION
REQUEST FOR JUDICIAL INTERVENTION
Index No. 200
Supreme Court 201 County
Date Purchased
PLAINTIFF(S):202
IAS entry date:
Judge Assigned:
DEFENDANTS(S):203
RJI Date:
———————————————————————————————————————-
NATURE OF JUDICIAL INTERVENTION:
[]204 Order to Show Cause
(Clerk enter return date )205
[]206 Notice of Petition (return )207
NATURE OF ACTION OR PROCEEDING
SPECIAL PROCEEDINGS
[] Art. 78
Is this proceeding against a:
[Yes/No] Municipality: 208[Yes/No] Public Authority: 209
[Yes/No] Does this proceeding seek equitable relief?210
[Yes/No] Does this proceeding seek recovery for personal injury?211
[Yes/No] Does this proceeding seek recovery for property damage?212
Estimated time period for case to be ready for trial: 0-12 months
Attorney for Plaintiff(s):
Name213 Address Phone
Attorney for Defendant(s):
Name214 Address Phone
RELATED CASES:
Title215 Index Number Court Nature of Relationship
I affirm under penalty of perjury that, to my knowledge, other than as noted above, there are and have
been no related actions or proceedings, nor has a request for judicial intervention previously been filed in this
proceeding.
Dated: ____________ 216
_________________________________
(Signature)
_____________________________________
(Print Name)
Date ____________________________
..............................................
200. The court will fill in this blank.
201. Write the name of the county where you are bringing the action.
202. Write your name.
203. Write the name of the respondents.
204. If you are filing an Order to Show Cause, check this box.
205. If you are filing an Order to Show Cause, write the date you suggest the case be heard.
206. If you are filing a Notice of Petition, check this box.
207. If you are filing a Notice of Petition, write the date you suggest the case be heard.
208. Write "no" unless you are suing a city.
209. Write "yes" if you are suing any public officials or government agencies.
210. Write "yes" if you are seeking to prevent an agency or official from acting in a way which is harmful to you.
211. Write "yes" if you want to recover for injuries suffered by you.
212. Write "yes" if you want to recover for property damage. If not, write "no."
213. Write your name and address.
214. Write the name and address of the respondents.
215. If you have previously brought an Article 78 proceeding that is related to the Article 78 proceeding you are
currently bringing, write the title, index number, court and nature of relationship of that proceeding.
....
...
A-7. APPLICATION FOR AN INDEX NUMBER
INDEX
NUMBER
Application for INDEX NUMBER
Pursuant to section 8018, New York Civil Practice Law & Rules
Title of Action: ARTICLE 78217
[David Smith
v.
William Jones, Commissioner of the Department of Correctional Services]
Name and address of Attorney for Plaintiff or Petitioner Telephone No.218 (PRO SE)
Name and address of Attorney for Defendant or Respondent Telephone No.219
A. Nature of Special Proceeding Article 78 Proceeding
B. Application for Index Number filed by: Plaintiff Defendant
C. Was a previous Third Party Action filed? Yes No
COMPLETE Do Not Detach THIS STUB
Supreme Court, 220 County
221
v.
222 INDEX NUMBER:223
217. Write the name of your action.
218. Write your name and address.
219. Write the name and address of the respondent.
220. Write the name of the county in which you are bringing the action.
221. Write your name as the petitioner.
222. Write the name and official title of the respondent or respondents.
223. Leave this blank. Do not write a number.
....
.....
...
704 A JAILHOUSE LAWYER'S MANUAL Ch. 22
A-8. AFFIDAVIT IN SUPPORT OF REQUEST FOR REDUCTION/WAIVER OF FEEES
704 A JAILHOUSE LAWYER'S MANUAL Ch. 22
A-8. AFFIDAVIT IN SUPPORT OF REQUEST FOR REDUCTION/WAIVER OF FEES
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF
X
In the Matter of the Application of :
:
Affidavit in Support of
, : Application for Fee
: Reduction/Waiver Pursuant to
: N.Y. C.P.L.R. 1101(f)- against - :
: Index No
For a Judgment Pursuant to Article 78 :
of the Civil Practice Law and Rules
704 A JAILHOUSE LAWYER'S MANUAL Ch. 22
A-8. AFFIDAVIT IN SUPPORT OF REQUEST FOR REDUCTION/WAIVER OF FEES
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF
X
In the Matter of the Application of :
: Affidavit in Support of
, : Application for Fee
Petitioner, : Reduction/Waiver Pursuant to
: N.Y. C.P.L.R. 1101(f)
- against - :
: Index No.
, :
Respondent, :
:
For a Judgment Pursuant to Article 78 :
of the Civil Practice Law and Rules :
X
I, ,224 being duly sworn, hereby declare as follows:
1. I am the petitioner in the above-entitled proceeding, I am an inmate in a state correctional facility
[place of incarceration: ]225, and I submit this affidavit in support of my application for a
reduction of the filing fees pursuant to N.Y. C.P.L.R. 1101(f) (and that an attorney be assigned to represent
me).226
2. I currently receive income from the following sources, exclusive of correctional facility wages:
.
3. I own the following valuable property (other than miscellaneous personal property):
[Value:]. I have no savings, property, assets, or income other than as set forth herein.5. I am unable to pay the filing fee necessary to prosecute this proceeding.6. No other person who is able to pay the filing fee has a beneficial interest in the result of this proceeding.7. The facts of my case are described in my claim and other papers filed with the court.8. I have made no prior request for this relief in this case.
(signature)
Sworn to before me this ___ day of , 20 .______________ 227
NOTARY PUBLIC AUTHORIZATION
I, ,228 inmate number , 229 request and authorize the agency holding me in custody to send to the Clerk of the Court certified copies of the correctional facility trust fund account statement (or the institutional equivalent) for the past six months.
I further request and authorize the agency holding me in custody to deduct the filing fee from my correctional facility trust fund account (or the institutional equivalent) and to disburse those amounts as instructed by the Court.
This authorization is furnished in connection with the above entitled case and shall apply to any agency into whose custody I may be transferred.
I UNDERSTAND THAT I MAY HAVE TO PAY THE ENTIRE FEE IF THE COURT DENIES MY REQUEST FOR A FEE REDUCTION. MOREOVER, I UNDERSTAND THAT THE FEE DETERMINED BY THE COURT WILL BE PAID IN INSTALLMENTS BY AUTOMATIC DEDUCTIONS FROM MY CORRECTIONAL FACILITY TRUST FUND ACCOUNT EVEN IF MY CASE IS DISMISSED.230(signature)227.
This is where the notary public notarizes the affidavit224. Your name.225. Name and address of your correctional facility.226. Include this part of the sentence if you would like to request that a lawyer represent you.Ch. 22 HOW TO CHALLENGE ADMINISTRATIVE DECISIONS USING ARTICLE 78 7054.
I have no savings, property, assets, or income other than as set forth herein.5.
I am unable to pay the filing fee necessary to prosecute this proceeding.6.
No other person who is able to pay the filing fee has a beneficial interest in the result of this proceeding.7. The facts of my case are described in my claim and other papers filed with the court.8. I have made no prior request for this relief in this case.(signature)Sworn to before me this ___ day of , 20 .______________ 227
NOTARY PUBLIC AUTHORIZATION I, ,228 inmate number , 229 request and authorize the agency holding me in custody to send to the Clerk of the Court certified copies of the correctional facility trust fund account statement (or the institutional equivalent) for the past six months.
I further request and authorize the agency holding me in custody to deduct the filing fee from my correctional facility trust fund account (or the institutional equivalent) and to disburse those amounts as instructed by the Court. This authorization is furnished in connection with the above entitled case and shall apply to any agency into whose custody I may be transferred.
I UNDERSTAND THAT I MAY HAVE TO PAY THE ENTIRE FEE IF THE COURT DENIES MY REQUEST FOR A FEE REDUCTION. MOREOVER, I UNDERSTAND THAT THE FEE DETERMINED BY THE COURT WILL BE PAID IN INSTALLMENTS BY AUTOMATIC DEDUCTIONS FROM MY CORRECTIONAL FACILITY TRUST FUND ACCOUNT EVEN IF MY CASE IS DISMISSED.230(signature)227.
This is where the notary public notarizes the affidavit by signing it and fixing his or her official seal to it. If you have difficulty obtaining the services of a notary public, you should have another prisoner witness your signature. (Use this technique only as a last resort.)
If another prisoner is your witness, you should add at the bottom of the affidavit:I declare that I have not been able to have this [affidavit] notarized according to law because [explain here your efforts to get the affidavit notarized].
I therefore declare under penalty of perjury that all of the statements made in this [affidavit] are true to my own knowledge, and I pray leave of the Court to allow this [affidavit] to be filed without notarization.[Your signature].228. Your name.229. Your inmate number.230.
Your signature. By signing this section, you give permission for your facility to send the Court copies of your trust fund account statement.
You also authorize the facility to withdraw the filing fee from your account and to send it to the Court.
The entire filing fee will be withdrawn automatically from your account even if your case is dismissed.
X. DISCLOSURE
A. Discovery is presumptively improper in an article 78 proceeding.
Except for a request for admission pursuant to CPLR 3123, disclosure is not permitted in an article 78 proceeding without leave of court. CPLR 408.
"[D]isclosure is available only by leave of court in a CPLR article 78 proceeding"
(Stapleton Studios. LLC v. City of N.Y., 7 AD.3d 273, 274-75 (1 st Dep't
2004) (reversing Supreme Court order granting leave to conduct discovery in an article 78
https://casetext.com/case/lutsky-v-shuart
Lutsky v. Shuart
Opinion
April 3, 1973
Leonard S. Clark and Saul R. Fenchel for petitioners.
Joseph Jaspan, County Attorney, for respondents.
ALEXANDER BERMAN, J.
This is a proceeding pursuant to CPLR article 78 seeking judgment directing the respondent to reinstate petitioner's eligibility for full medical assistance as of October 30, 1972, and requiring the respondents to furnish reimbursement for any necessary medical expenses incurred after that date, and further directing respondents to make a prompt search of their records and provide the same relief for all those recipients of medical assistance whose eligibility was terminated or curtailed as a result of the increase of social security benefits which took place because of the 1972 amendments to the Social Security Act.
Petitioners were receiving both public assistance under the Aid to the Aged, Blind and Disabled program (AABD) and social security insurance benefits.
Because of an increase of social security benefits effected by Public Law 92-336 (U.S. Code Service L.Ed., Aug., 1972, Supp., p. 1346), the respondent Nassau County Department of Social Services changed petitioners' eligibility for full medical assistance (Class A) to that of Class B which requires the payment of 20% of their necessary medical expenses.
On October 30, 1972, Public Law 92-603 was enacted. Section 249E of this statute (U.S. Code Service L.Ed., Dec. 1972, Supp., p. 2823) provides, in effect, that those who were receiving aid and assistance under a Federally approved State plan, and also social security benefits in August of 1972 should not be deemed ineligible for such aid and assistance for any month thereafter prior to October of 1974 because of the increases in social security benefits resulting from the enactment of Public Law 92-336. In an administrative letter dated November 24, 1972, to the local social service departments, the State Department of Social Services indicated that medical assistance should be provided just as if there had been no social security increases.
This letter further directs that the local social service departments should take action to fully implement this purpose and that such action must be taken immediately.
Despite the Federal law and the clear administrative direction, petitioners' eligibility for full medical assistance was not reinstituted immediately to "Type A" coverage (full medical assistance) until February 2, 1973, more than two months after the directive dated November 24, 1972, which incidentally, was two days after the commencement of this proceeding.
The affidavit of the Commissioner states that "the policy of the Nassau County Department of Social Services has been to restore those who lost `Type A' coverage due to Public Law 92-336 to said `Type A' coverage."
It is significant that this affidavit contains no unequivocal assertion that the directive contained in the letter from the State Department has been fully and promptly complied with, nor are there any details as to exactly what was done to comply.
No reason has been given by the respondents for failing to comply immediately.
This bureaucratic delay of more than two months is inexcusable.
The court is satisfied that such failure to promptly comply with the directive may have caused considerable inconvenience and hardship to these petitioners and others similarly situated.
In view of this failure to fully and promptly comply with the directive of November 24, 1972, the petitioners are entitled to judgment directing the respondents to make a prompt search of their records and to determine the names of those recipients of medical assistance whose eligibility was terminated or curtailed by reason of the 1972 amendments to the Social Security Law, and to furnish them with the benefits to which they were entitled prior thereto.
The respondents are also directed to reimburse those who incurred medical expenses after the date of October 30, 1972, and who make claim thereto and who establish same by competent proof.
The contention of respondents that reimbursement may not be made by reason of section 367-a of the Social Security Law and section 360.17 of title 18 of the official New York State Codes, Rules and Regulations cannot apply in this situation. ( Matter of Cole v. Wyman, 40 A.D.2d 1033; also Matter of Rosenblum v. Lavine, 70 Misc.2d 667, 668.)
The court further holds that the exhaustion of administrative proceedings is not required.
To require those poor, needy individuals to institute separate proceedings to obtain what the State Department of Social Services and the Congress have stated that they are entitled to creates an unnecessary hardship.
Implicit in this decision is the conclusion of the court that this is a proper class action, pursuant to CPLR 1005, in that the issues raised here are of common and general interest to all persons lawfully entitled to "Type A" benefits.
https://codes.findlaw.com/ny/real-property-actions-and-proceedings-law/rpa-sect-753/
Real Property Actions and Proceedings Law -
RPA § 753. Stay in premises occupied for dwelling purposes
4. In the event that such proceeding is based upon a claim that the tenant or lessee has breached a provision of the lease, the court shall grant a thirty day stay of issuance of the warrant, during which time the respondent may correct such breach.
5. Any provision of a lease or other agreement whereby a lessee or tenant waives any provision of this section shall be deemed against public policy and void.