How does one file an Article 78 (or Article 75) lawsuit? What is it and who can file one?
Disclaimer: The Site cannot and does not contain legal advice. The legal information is provided for general informational and educational purposes only and is not a substitute for professional advice. Accordingly, before taking any actions based upon such information, we encourage you to consult with the appropriate professionals. We do not provide any kind of legal advice. The use or reliance of any information contained on this site is solely at your own risk.
With an Article 78, you can litigate in State Court, pursuant to the Civil Practice Law and Rules (CPLR), in order to challenge an administrative decision by a State or local governmental agency. For example, the administrative decision could be your having been fired from DOE via a discontinuance of probationary service or a denial of certification of completion of probation (aka “denial of tenure”). Or it could be a denial of access to records pursuant to the New York Freedom of Information Law (FOIL). So long as the administrative decision that affected you occurred within New York State, you are within your rights to file an Article 78 with certain exceptions. Namely, if you were fired as a result of an arbitrator’s Education Law § 3020-a or § 3020-b decision, and wish to challenge the firing, then you would have to file an Article 75, which is a type of litigation that challenges the decision of an arbitrator.
Here is the text of Article 78:
https://www.nysenate.gov/legislation/laws/CVP/A78
Here is the text of Article 75:
https://www.nysenate.gov/legislation/laws/CVP/A75
The link for “How to Start a Special Proceeding” from the NYS Supreme Court, Civil Branch’s Help Center, if you would like to start an Article 78 (or Article 75) in Manhattan is:
To file an Article 78 (or Article 75), follow the instructions for filing a Notice of Petition (not an Order to Show Cause) in the Court’s publication above. The publication is not organized well and jumps around.
The forms you will need are an Index Number Purchase Sheet (available in the Help Center, Room 116 at 60 Centre Street) and a Request for Judicial Intervention (a fillable RJI is available at http://www.nycourts.gov/forms/rji/UCS-840-fillable.pdf).
The best way to learn how to write a Notice of Petition and an Article 78 (or Article 75) petition for cases filed in Manhattan is to go to SCROLL (Supreme Court Records On-Line Library) and look at different Article 78 (or Article 75) petitions, especially those in which the DOE is the defendant (aka “respondent”).
Or you could visit the Georgetown Law Library New York Resources webpage and then click on the heading “WebCivil Supreme, New York State Unified Court System.”
That will take you to a page where you can click on “Party Search” and then search for cases where “New York City Department of Education” or “NYC Department of Education” was a defendant (aka “respondent”).
If you are first requested to check off a reCaptcha box that you are not a robot, then do so.
For “Case Status,” click “All.”
For “Return only Cases with Future Appearances,” click “No.”
If the case you are researching was E-filed, you should be able to access all the pleadings in the case, one at a time, online.
If the case you are researching was not E-filed, and you want to examine the pleadings, but you don’t want to spend time in the Records Room of the NYS Supreme Court in Manhattan, then you have the option of filing a FOIL request with either DOE or the Corporation Counsel’s Office.
Technically, the petition should just contain the facts and allegations with stated Causes of Action, and the legal arguments should go in a Memorandum of Law.
Need help finding a legal library? Go here!
Need a recommendation of an attorney who can file an Article 78 (or Article 75) on your behalf? Go to this website and click on “Schedule a Consultation Today” to complete the intake form.
