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Article 78 Proceeding Service of Process Considerations

In New York State, an Article 78 proceeding is a hearing which establishes the procedure for challenging the determinations of administrative agencies, public bodies, or officers. The proceedings are commonplace in appealing adverse rulings in disciplinary hearings for state, city, or local agency employment, but they are not solely applicable to employment matters as they apply to any government decisions (i.e., contesting a license denial). The parties to Article 78 proceedings are referred to as “petitioners” and “respondents.” Article 78 proceedings must be brought in the Supreme Court of the county within the judicial district where either the respondent made the adverse determination against the petitioner, or where the respondent refused to perform the duty required by law.

A petitioner seeking to appeal an adverse ruling is subject to a brief statute of limitations, as Article 78 petitions must be filed within four months from receipt of the final determination letter. Until recently, the statute of limitations “clock” was not triggered until the petitioner received the letter informing them of the adverse ruling. Delivery of an adverse decision letter via email or certified mail was sufficient, provided that the letter constituted a final and biding determination. After the determination letter is received by petitioner and the statute of limitations is triggered, the petitioner files a Notice of Petition which serves as a summons to the respondent, and an Order to Show Cause when the petition requires an expedited hearing.

A recent Third Department ruling has clarified which delivery method starts the four-month statute of limitation for an Article 78 proceeding. In Matter of Park Beach Assisted Living, LLC v. Zucker, 2020 N.Y. Slip Op. 07264 (3rd Dept. 2020), the court ruled that the statute of limitations is not necessarily triggered when a letter sent via email is received by the petitioner, if the respondent sent the determination letter via certified mail as well.

In Zucker, the respondent (N.Y. Department of Health) sent a final determination letter to petitioner denying its application to open an assisted living facility. The respondent sent the determination letter to the petitioner’s attorneys in an email as a PDF attachment and sent another determination letter via certified mail. The petitioner’s attorneys received the email days before receipt of the certified letter. As expected, the petitioner used the email delivery date to determine the start of the Article 78 statute of limitation period. Additionally, the petitioner made a mistake in the corresponding Order to Show Cause by only serving the Attorney General and not effecting proper service upon respondents. The error was fatal, as the respondents submitted a motion to dismiss which was granted by the Supreme Court.

The Third Department overturned the Supreme Court motion to dismiss and granted the petitioner an opportunity to correct its error in the Order to Show Cause. It ruled that the statute of limitations began when the certified letter was received by petitioner’s attorneys, and not the email attachment. The Court’s reasoned because the respondent sent the determination letter via email and certified mail, the certified mail is the original and binding notice because the process of sending via certified letter is more formal, requiring a signature to acknowledge delivery and receipt. Standing alone, the Court stated that “an email delivery could have suffice[d].” However, when using email and certified mail, the more “formal” method controls and determines the beginning of the statute of limitations period and acknowledged that respondents “created an ambiguity that must be resolved in [petitioners] favor.”

The Third Department determined that allowing the petitioner to correct the Order to Show Cause and properly serving respondents, in light of the statute of limitations confusion, would not prejudice respondents. The Third Department stated, “under the circumstances, rather than dismissing a proceeding, a court is authorized to extend the time for service upon good cause shown or in the interest of justice.”

Despite the favorable ruling in petitioner’s favor, the takeaway is that an Article 78 proceeding has very little room for error and overlooking the smallest detail can invalidate an otherwise valid claim. Petitioners and their counsel need to be aware of the proper process to affect a proceeding. Failure to do so can lead to undesirable results. This decision is binding in the Third Department (Albany and surrounding areas) but ultimately may not be followed in other parts of the state.

If you have any questions related to this Legal Briefing, please contact any member of our Firm at 585-730-4773. Please note that any embedded links to other documents may expire in the future.


This Legal Briefing is intended for general informational and educational purposes only and should not be considered legal advice or counsel. The substance of this Legal Briefing is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2020 Law Offices of Pullano & Farrow PLLC


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