§ 7803 N.Y.C.P.L.R. Questions raised.
The only questions that may be raised in a proceeding under this article are:
1. whether the body or officer failed to perform a duty enjoined upon it by law; or
2. whether the body or officer proceeded, is proceeding or is about to proceed without or in
excess of jurisdiction; or
3. whether a determination was made in violation of lawful procedure, was affected by an
error of law or was
arbitrary and capricious or
an abuse of discretion, including abuse of
discretion as to the measure or mode of penalty or discipline imposed; or
4. whether a determination made as a result of a hearing held, and at which evidence was
taken, pursuant to direction by law is, on the entire record, supported by substantial evidence.
5. A proceeding to review the final determination or order of the state review officer pursuant
to subdivision three of section forty-four hundred four of the education law shall be brought
pursuant to article four of this chapter and such subdivision; provided, however, that the
provisions of this article shall not apply to any proceeding commenced on or after the effective
date of this subdivision.
(As amended by Laws 2003, ch. 492, Sec. 2, eff. Sept. 1, 2003.)
If your case involves rights protected by the U.S. Constitution or
the legality of a federal law,
you may be able to file a case in federal court or in New York State Supreme Court.
In that case, you may have up to three years from the date of the unfavorable hearing decision
to file your case. It is usually safest to file the Article 78 challenge to
the unfavorable hearing decision
within four months of the date
of the decision to make sure that you do not miss this deadline.
§ 7802 N.Y.C.P.L.R. Parties.
(a) Definition of "body or officer". The expression "body or officer"includes every court,
tribunal, board, corporation, officer, or otherperson, or aggregation of persons, whose action may
be affected by a proceeding under this article (b) Persons whose terms of office have expired;
successors. Whenever necessary to accomplish substantial justice, a proceeding under this article
may be maintained against an officer exercising judicial or quasi-judicial functions, or member
of a body whose term of office has expired. Any party may join the successor of such officer or
member of a body or other person having custody of the record of proceedings under review.
(c) Prohibition in favor of another. Where the proceeding is brought to restrain a body or officer
from proceeding without or in excess of jurisdiction in favor of another, the latter shall be joined
as a party.
(d) Other interested persons. The court may direct that notice of the proceeding be given to any
person. It may allow other interested persons to intervene.
§ 7804 N.Y.C.P.L.R. Procedure.
(a) Special proceeding. A proceeding under this article is a special proceeding.
(b) Where proceeding brought. A proceeding under this article shall be brought in the supreme
court in the county specified in subdivision (b) of section 506 except as that subdivision
otherwise provides.
(c) Time for service of notice of petition and answer. Unless the court grants an order to show
cause to be served in lieu of a notice of petition at a time and in a manner specified therein, a
notice of petition, together with the petition and affidavits specified in the notice, shall be served
on any adverse party at least twenty days before the time at which the petition is noticed to be
heard.
An answer and supporting affidavits, if any, shall be served at least five days before such
time. A reply, together with supporting affidavits, if any, shall be served at least one day before
such time. In the case of a proceeding pursuant to this article against a state body or officers, or
against members of a state body or officers whose terms have expired as authorized by
subdivision (b) of section 7802 of this chapter, commenced either by order to show cause or
notice of petition, in addition to the service thereof provided in this section, the order to show
cause or notice of petition must be served upon the attorney general by delivery of such order or
notice to an assistant attorney general at an office of the attorney general in the county in which
venue of the proceeding is designated, or if there is no office of the attorney general within such
county, at the office of the attorney general nearest such county. In the case of a proceeding
pursuant to this article against members of bodies of governmental subdivisions whose terms
have expired as authorized by subdivision (b) of section 7802 of this chapter, the order to show
cause or notice of petition must be served upon such governmental subdivision in accordance
with section 311 of this chapter.
(d) Pleadings. There shall be a verified petition, which may be accompanied by affidavits or
other written proof.
Where there is an adverse party there shall be a verified answer, which must
state pertinent and material facts showing the grounds of the respondent's action complained of.
There shall be a reply to a counterclaim denominated as such and there shall be a reply to new
matter in the answer or where the accuracy of proceedings annexed to the answer is disputed.
The court may permit such other pleadings as are authorized in an action upon such terms as it
may specify.
(e) Answering affidavits; record to be filed; default.
The body or officer shall file with the
answer a certified transcript of the record of the proceedings under consideration, unless such a
transcript has already been filed with the clerk of the court. The respondent shall also serve and
submit with the answer affidavits or other written proof showing such evidentiary facts as shall
entitle him to a trial of any issue of fact. The court may order the body or officer to supply any
defect or omission in the answer, transcript or an answering affidavit. Statements made in the
answer, transcript or an answering affidavit are not conclusive upon the petitioner. Should the
body or officer fail either to file and serve an answer or to move to dismiss, the court may either
issue a judgment in favor of the petitioner or order that an answer be submitted.[/b]
(f) Objections in point of law.
The respondent may raise an objection in point of law by setting
it forth in his answer or by a motion to dismiss the petition, made upon notice within the time
allowed for answer.
If the motion is denied, the court shall permit the respondent to answer, upon
such terms as may be just; and unless the order specifies otherwise, such answer shall be served
and filed within five days after service of the order with notice of entry; and the petitioner may
re-notice the matter for hearing upon two days' notice, or
the respondent may re-notice the matter
for hearing upon service of the answer upon seven days' notice. The petitioner may raise an
objection in point of law to new matter contained in the answer by setting it forth in his reply or
by moving to strike such matter on the day the petition is noticed or re-noticed to be heard.
(g) Hearing and determination; transfer to appellate division.
Where the substantial evidence
issue specified in question four of section 7803 is not raised, the court in which the proceeding is
commenced shall itself dispose of the issues in the proceeding. Where such an issue is raised, the
court shall first dispose of such other objections as could terminate the proceeding, including but
not limited to lack of jurisdiction, statute of limitations and res judicata, without reaching the
substantial evidence issue.
If the determination of the other objections does not terminate the
proceeding, the court shall make an order directing that it be transferred for disposition to a term
of the appellate division held within the judicial department embracing the county in which the
proceeding was commenced. When the proceeding comes before it, whether by appeal or
transfer, the appellate division shall dispose of all issues in the proceeding, or, if the papers are
insufficient, it may remit the proceeding.
(h) Trial. If a triable issue of fact is raised in a proceeding under this article, it shall be tried
forthwith.
Where the proceeding was transferred to the appellate division, the issue of fact shall
be tried by a referee or by a justice of the supreme court and the verdict, report or decision
rendered after the trial shall be returned to, and the order thereon made by, the appellate division.
(i) Appearance by judicial officer. Notwithstanding any other provision of law, where a
proceeding is brought under this article against a justice, judge, referee or judicial hearing officer
appointed by a court and
(1) it is brought by a party to a pending action or proceeding, and
(2) it is based upon an act or acts performed by the respondent in that pending action or
proceeding either granting or denying relief sought by a party thereto, and
(3) the respondent is not a named party to the pending action or proceeding, in addition to
service on the respondent, the petitioner shall serve a copy of the petition together with copies of
all moving papers upon all other parties to the pending action or proceeding.
All such parties
shall be designated as respondents.
Unless ordered by the court upon application of a party the
respondent justice, judge, referee or judicial hearing officer need not appear in the proceeding in
which case the allegations of the petition shall not be deemed admitted or denied by him.
Upon
election of the justice, judge, referee or judicial hearing officer not to appear, any ruling, order or
judgment of the court in such proceeding shall bind said respondent. If such respondent does
appear he shall respond to the petition and shall be entitled to be represented by the attorney
general. If such respondent does not elect to appear all other parties shall be given notice thereof
...
7805 N.Y.C.P.L.R. Stay.
On the motion of any party or on its own initiative, the court may stay further proceedings, or
the enforcement of any determination under review, upon terms including notice, security and
payment of costs, except that the enforcement of an order or judgment granted by the appellate
division in a proceeding under this article may be stayed only by order of the appellate division
or the court of appeals.
Unless otherwise ordered, security given on a stay is effective in favor of
a person subsequently joined as a party under section 7802
7806 N.Y.C.P.L.R. Judgment.
The judgment may grant the petitioner the relief to which he is entitled, or may dismiss the
proceeding either on the merits or with leave to renew. If the proceeding was brought to review a
determination, the judgment may annul or confirm the determination in whole or in part, or
modify it, and may direct or prohibit specified action by the respondent.
Any restitution or
damages granted to the petitioner must be incidental to the primary relief sought by the
petitioner, and must be such as he might otherwise recover on the same set of facts in a separate
action or proceeding suable in the supreme court against the same body or officer in its or his
official capacity.
...
http://onlineresources.wnylc.net/FairHearingResources/docs/an_overview_of_article_78_practice_and_procedure__05-21-09_.pdf
Moreover, petitioner's expert testified, unrebutted at
the fair hearing, that based on her own assessment of petitioner, she was within the
developmental period and met the criteria for a diagnosis of an intellectual disability,
including both cognitive and adaptive skills deficits.
State Administrative Procedure Act § 306 (1) provides, in relevant part, that "[n]o
decision, determination or order shall be made except upon consideration of the record as
a whole or such portion thereof as may be cited by any party to the proceeding and as
supported by and in accordance with substantial evidence" (emphasis added).
Based on
our review of the record as a whole, we find that DOH's determination that there is "no
evidence" to establish that petitioner has a qualifying diagnosis or substantial handicap to
functioning attributable to a qualifying diagnosis is arbitrary and capricious
(see Matter
of Ridge Rd. Fire Dist. v Schiano, 16 NY3d 494, 499 [2011]).
As the Court of Appeals
has noted, "rationality is the underlying basis for both the arbitrary and capricious
standard and the substantial evidence rule.
It is this concept which guides our analysis of
[DOH's] decision for both its rationality and record support"
(Matter of Jennings v New
York State Off. of Mental Health, 90 NY2d 227, 240 [1997] [citation omitted]).
Here,
DOH's conclusion that there was no evidence of a qualifying diagnosis is irrational as a
matter of law (see Matter of Ridge Rd. Fire Dist. v Schiano, 16 NY3d at 499)