Constitution Rights Org Edu

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]

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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 _______

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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

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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]

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