NYP 12.txt

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twiggy924
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26565
Filename:
NYP 12.txt
Updated:
2010-07-13 01:01:21
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Description:
Article 78
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  1. ARTICLE 78 PROCEEDINGS

    What are they?
    Special proceeding for judicial review of an action (or inaction) by GOVERNMENT or quasi-government officers or bodies of any kind
  2. ARTICLE 78 PROCEEDINGS: Right to Relief
    • Petitioner's right to relief requires that case would be subject to review under one of the 4 common law "prerogative writs"–
    • 1) MANDAMUS TO COMPEL performance of an act required by law (i.e., an act where no discretion is involved)

    • 2) PROHIBITION to stop a judicial officer from a GROSS EXCESS of power
    • Examples of gross excess include granting a request for a double-jeopardy proceedings, or compelling depositions of witnesses neither party wishes to depose.
    • Where there is no gross excess of power, proper remedy is for an appeal of the decision

    3) CERTIORARI that challenges the results of a "trial-type" hearing conducted by an administrative agency. SoR: Substantial evidence in the record.

    4) MANDAMUS TO REVIEW any type of administrative action not covered by 1-3
  3. ARTICLE 78 PROCEEDINGS

    1) In what court may an Article 78 proceeding be brought?
    2) When must papers (petition, notice of petition) be served?
    3) What type of relief may be sought?
    1) NY SUPREME COURT

    2) 20 DAYS before the return date for court hearing

    3) DECLARATORY or INJUNCTIVE relief
  4. SoL: ARTICLE 78 PROCEEDINGS
    Four months running from petitioner's receipt of action challenged.

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