Constitution Rights Org Edu

(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