Trying to Evict your New York Tenant Yourself via a Holdover Proceeding or a Non-Payment Proceeding? Beware of These Pitfalls

holdover proceeding

  • In New York landlord tenant proceedings, judges have the least amount of discretion to save a defective petition in a holdover proceeding or non-payment proceeding.

  • This is because New York landlord tenant proceedings are almost entirely regulated by statute, and as such, any defect in the non-payment petition or holdover petition must result in its non-acceptance or dismissal. So be sure you have fulfilled all of the landlord tenant court’s requirements before serving your holdover proceeding or non-payment proceeding petition.

  • You must know the type of eviction proceeding you wish to bring (either a holdover proceeding or a non-payment proceeding), and your court’s rules for each. (A non-payment proceeding is brought to evict a tenant because he or she has failed to pay rent despite the landlord’s demand for payment; a holdover proceeding is brought to evict a tenant where the primary goal is to remove the tenant, and non-payment of rent is not the primary reason for the eviction).

  • You generally cannot bring a holdover proceeding if you have a written lease with your tenant unless they violated one of the terms of the written lease.
  • If you are bringing a holdover proceeding (which is commenced by a notice of petition and a petition), the notice of petition MUST be issued by an attorney, a judge, or a court clerk. A notice of petition in a holdover proceeding CANNOT be issued by you, the landlord (See Real Property Actions and Proceedings Law 731[1]). If your notice of petition in your holdover proceeding is not issued by an attorney, a judge, or a court clerk, the court will either refuse to accept your petition, or will dismiss your petition as defective on the return date.

  • If you are evicting your tenant via a holdover proceeding, you are required to properly serve a 30 day notice before you serve your notice of petition and petition.

  • For holdover proceedings, you must use specific language in your 30 day notice in accordance with the requirements of the New York Real Property Actions and Proceedings Law, or your holdover petition will be dismissed by the court. So finding a generic 30 day notice form on the internet will most likely be insufficient to satisfy the court’s requirements. You can refer to the New York State Real Property Actions and Proceedings Law to review the specific language and procedures required for holdover proceedings.
  • Since you are a party to the action (you are the landlord, or the petitioner), you cannot serve the 30 day notice in your holdover proceeding yourself. The 30 day notice must be served by a non-party, usually a process server, and the 30 day notice in a holdover proceeding must be served in the same exact manner as the notice of petition and the petition. (The time and manner of service of the 30 day notice in a holdover proceeding is also strictly regulated by statute, and even the slightest deviation from what the law requires will result in the dismissal of your petition).

 To learn more about your holdover proceeding or non-payment proceeding, call our office and speak with a landlord tenant attorney for free (631) 747-0356

Posted in Eviction NY, holdover proceeding, Landlord Tenant, non-payment proceeding

Bride & Groom Sue for Breach of Contract and Damages: What Duty Does a Professional Photographer Have With Respect to the Quality of Images Provided to His or Her Clients?

Joseph Andreani and his fiancée hired Romeo Creations, Ltd., to videotape and photograph their wedding.   Before entering into an agreement, they were shown the photographer’s sample wedding albums, which displayed a level of photographic skill with which they were satisfied.  Pursuant to the contract entered into between the parties, Romeo Creations, Ltd., was to provide 3 professionals to photograph and videotape the wedding, and provide 70 pictures for the wedding album for the sum of $5,400.

Joseph Andreani testified that on the day of the wedding, only 2 professionals showed up (one videographer and one photographer).  The photographer that showed up was not the owner of Romeo Creations, Ltd., but was employed as a “senior photographer” at the studio.  Although 360 pictures were taken by the senior photographer, most of them were duplicates; there were no individual table or group shots; no photos of the guests dancing; no photos of the bride’s family; no black and white photos; no special effects shots; no collage shots; no photos of the groomsmen; no photos taken during the cocktail hour; minimal shots of the guests toasting the bride; minimal shots of the wedding guests generally; and incomplete shots of the bridal party.

The groom testified that the pictures produced for his wedding were not at all representative of the photos shown to him in the sample wedding albums he was shown.  The pictures produced for his wedding album were amateurish with respect to positioning, posing and lighting; and the pictures failed to adequately commemorate his wedding.  The bride and groom were, however, satisfied with the quality of the video provided.

The owner of the photography studio, Frances Romeo, testified that the contract did not provide for any special effects shots, collages, or black and white photos, nor did it specify the exact number of photos to be taken, or who would be taking them.  The contract only provided that the wedding album would consist of 70 photos selected from the total number of photos taken.  Further, Ms. Romeo testified that as a professional photographer with 25 years of experience, she is satisfied with the results of the final images, and claimed they are more than adequate to satisfy the parties’ contract.

Without a contract specifying the adequacy of the images to be provided, what duty does a professional photographer have with respect to the quality of images provided to his or her clients?

The law in New York State regarding breach of contract claims provides that a party entering into a contract to retain another to perform services can expect performance with the reasonable care, skill and diligence owed generally by practitioners in that particular trade (Milau Associates v North Ave. Development Corp., 42 NY2d 482, 486; Bialy v Walter Lowlier, Inc., 160 AD2d 559).  In this situation, although there was no provision in the contract specifying how the photos were to be taken, New York State recognized an implied promise in the contract to perform in a skillful and workmanlike manner (Bialy v Walter Lowlier, Inc., supra).  A party undertaking to perform work is charged with a common law duty to exercise reasonable care and skill according to standard practices in the trade (International Fidelity Ins. Co. v Gasco Western Inc., 229 AD2d 471, 474).  The failure to comply with this implied duty may entitle the non-breaching party to damages resulting from the failure (Mohawk Overall Co. v Brown, 163 AD 157; Pitcherello v Moray Homes, Ltd., 150 AD2d 860; DeLuca v Wahl, 140 AD2d 956).

Upon examining the photos in this case, the Court found that a majority of them depicted dark and grey backgrounds and used very poor lighting.  The Court noted that the colors were clearly distorted, as there were pictures taken outdoors where the sky appeared to be purple; pictures where the grass and tree leaves appeared brown instead of green; and pictures where a lake appeared blue in some shots and brown in others.  The majority of the indoor pictures were dark, blurry and unfocused.  There were very few shots of the bride and groom with the bridal party or with their families; and there were staff workers and clutter in the background.  The Court held that overall, from a lay person’s point of view, the photos appeared amateurish and not of a professional nature.

The Court held that since the pictures were not skillfully taken, they do not comport with the reasonable standards and practices in the trade of professional photography.  And since the photography studio held itself out to be professional, it was reasonable for the bride and groom to expect photographs of a professional, skillful and workmanlike nature.

Since the photos were less than professional quality, the bride and groom were deprived of their full enjoyment, which they had a right to expect, of the pictures commemorating their wedding and reception (Grather v Tipery Studios, 334 So2d 758 [La App 1976]).  As such, the photography studio breached its contract.

Once liability is determined, the Court must decide the amount of damages, if any, to be provided.  Luckily for Romeo Creations, Ltd., the bride and groom only requested a refund of the money they paid for photography, and no additional damages.  Since Romeo Creations, Ltd., charged the bride and groom $5,400 for both photography and video services, and since the bride and groom were happy with their video, the Court ordered a refund of half the contract price, and awarded a judgment in favor of the bride and groom in the amount of $2,700.

Please visit our copyright litigation and photographers’ rights page to learn more about photography and the law.

Posted in Civil Cases, Civil Law, Civil Lawsuit, consumer law, consumer rights, Contract Law, intellectual property, NY Lawyer, photography and the law

The Right of Privacy in New York – Under What Circumstances Can Your Image be Publicly Displayed Without Your Consent?

We’ve all had our photograph taken, usually knowingly, but sometimes unknowingly.  But imagine if you discovered a photograph of yourself on a billboard advertising a debt-consolidation company, or if you discovered a photograph of yourself in an art display in Times Square taken while you were sunbathing in your swimsuit at the beach.  Under what circumstances can you restrict the use of your photograph, and under what circumstances are you entitled to financial compensation for its use?

You might be surprised to learn that there is no common law right to privacy in the State of New York.  Instead, a limited statutory right to privacy is created by Civil Rights Law §§ 50 and 51, which set forth specific instances in which the use of someone’s image without their consent is prohibited, as well as the penalties that may be imposed for violations.  Determining whether there has been a violation begins with a review of the specific limitations placed on the rights to images and their uses as described in § 50 of the Civil Rights Law.

Civil Rights Law § 50.  Right of Privacy

“A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor. “

Civil Rights Law § 50 is fairly self-explanatory, in that it makes it a criminal offense to use the name, portrait or picture of someone for advertising or trade purposes without first obtaining that person’s written consent.  The key language here is “advertising or trade purposes.”  If someone is displaying your image for some other purpose, it is probably not a violation of the statute, and you are not eligible for relief under §§ 50 or 51 of the Civil Rights Law (for a discussion of what constitutes advertising or trade purposes with respect to displaying an image, you can read our article on that topic next week).

There are certain obvious instances that would qualify as “advertising or trade purposes,” such as the use of your image to sell products on a billboard or in a newspaper advertisement without your consent.  This type of clear violation would make you eligible to bring an action for damages and to seek an injunction under Civil Rights Law § 51, which is discussed further below.

However, most disputes involve situations in which the violation may not be so evident.  What if you paid to enter a museum, only to find pictures of yourself hanging on the walls, and collages of your image on various mugs and gifts available for sale in the museum’s gift shop?  In 2000, this very scenario happened to Charlotte Dabney at the Whitney Museum of American Art.  A photographer had taken a picture of her years before, and an artist used her image, without her knowledge or consent, to create artistic collages.  Dabney sued the museum and the artist, and lost.  A Federal District Court Judge held that the use of a person’s image in a work of art is a constitutionally protected form of free speech exempt from Civil Rights Law §§ 50 and 51.  In other words, regardless of whether you have consent, you can use someone’s name, portrait or picture in a work of art (a discussion of what qualifies as a work of art will be the focus of a future article).

Just as §§ 50 and 51 of the Civil Rights Law place no restrictions on works of art, they also place no restrictions on news or editorial publications.  A newspaper, magazine or editorial website can post a picture of you to help sell its publications without your consent, as long as a reasonable relationship exists between your image and the subject matter contained in the article.  So, for example, a reporter for a newspaper can take a picture of you on the beach in your bathing suit, without your consent, and print it on the front cover of the newspaper, as long as the story accompanying it reasonably relates to your image.

Sometimes there are circumstances in which the publisher believes he or she has permission to publish your image, but is mistaken.  In these circumstances, the publisher of the image can still be held liable.  If someone gives verbal permission for his of her image to be displayed for advertising or trade purposes, for example, the publisher of the image can be held liable under Civil Rights Law §§ 50 and 51 if that person later changes his or her mind.  This is because § 50 of the Civil Rights Law requires that consent must be given in writing if an image is used for advertising or trade purposes. This is one legal quagmire that a well written and executed model release form would avoid. However, it should be noted that prior oral consent often serves to reduce any award of punitive damages if a model release form was not used.

Even if written consent is given, the publisher must also ensure that the photograph is published in a manner outlined in the contract that gives consent.  For example, if a person signs a model release granting use of his or her image for advertising purposes for a period of one year, and the photograph is published after the expiration of that year, the publisher can be held liable under Civil Rights Law §§ 50 and 51.

Even in situations where a publisher legitimately purchases a photograph from a stock photography company to use specifically for an ad, the publisher can be held liable if the stock photography company failed to properly acquire written consent from the person whose image is displayed.  Essentially, if someone knowingly uses someone else’s name, portrait, or picture for advertising or trade purposes, even if they are mistaken as to consent or use, they can still be held liable.

Once liability is established, Civil Rights Law § 51 provides the legal authority to maintain an equitable action for an injunction to remove the image, and to pursue punitive damages against the person or company who used the name, portrait or picture without consent.

New York Civil Rights Law § 51.  Action for Injunction and for Damages

“Any person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait, picture or voice, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person’s name, portrait, picture or voice in such manner as is forbidden or declared to be unlawful by section fifty of this article, the jury, in its discretion, may award exemplary damages. But nothing contained in this article shall be so construed as to prevent any person, firm or corporation from selling or otherwise transferring any material containing such name, portrait, picture or voice in whatever medium to any user of such name, portrait, picture or voice, or to any third party for sale or transfer directly or indirectly to such a user, for use in a manner lawful under this article; nothing contained in this article shall be so construed as to prevent any person, firm or corporation, practicing the profession of photography, from exhibiting in or about his or its establishment specimens of the work of such establishment, unless the same is continued by such person, firm or corporation after written notice objecting thereto has been given by the person portrayed; and nothing contained in this article shall be so construed as to prevent any person, firm or corporation from using the name, portrait, picture or voice of any manufacturer or dealer in connection with the goods, wares and merchandise manufactured, produced or dealt in by him which he has sold or disposed of with such name, portrait, picture or voice used in connection therewith; or from using the name, portrait, picture or voice of any author, composer or artist in connection with his literary, musical or artistic productions which he has sold or disposed of with such name, portrait, picture or voice used in connection therewith. Nothing contained in this section shall be construed to prohibit the copyright owner of a sound recording from disposing of, dealing in, licensing or selling that sound recording to any party, if the right to dispose of, deal in, license or sell such sound recording has been conferred by contract or other written document by such living person or the holder of such right. Nothing contained in the foregoing sentence shall be deemed to abrogate or otherwise limit any rights or remedies otherwise conferred by federal law or state law.”

It’s interesting to note that Civil Rights Law § 51 provides for certain exceptions to liability that Civil Rights Law § 50 does not.  For example, anyone “practicing the profession of photography” is allowed to display photographs they have taken of others for trade purposes in furtherance of their photography business, regardless of whether a signed release was obtained.  However, if the subject of a photograph notifies the photographer in writing that he or she does not want the image to be displayed in connection with the photographer’s business, and a release has not been obtained, the photographer has a duty to immediately cease publication of the image.  If the photographer continues to display that person’s image, he or she may be liable for damages under § 51 of the Civil Rights Law.

Civil Rights Law § 51 provides that a jury must determine whether damages will be awarded, and must also determine the amount of damages, if any.  Additionally, there is a one-year statute of limitations for Civil Rights Law §§ 50 and 51 claims.  The time to file a claim runs from the date of the most recent violation of the statute, which is usually the date the offending material was first published.

For more information on copyright law and photography and the law, please visit our copyright page above.
Posted in Civil Cases, Civil Law, Civil Lawsuit, Civil Rights, Contract Law, copyright, copyright in photography, copyright infringement, copyright infringement attorney, copyright infringement cases, copyright infringement law, copyright infringement lawyer, copyright infringement penalties, copyright law, copyright law attorney, copyright law firm, copyright litigation, intellectual property, NY Lawyer, photography and the law

When Credit Card Lawsuits Go Bad – Debt Lawyer Sanctioned for Pursuing Invalid Credit Card Debt

In the matter of Erin Servs. Co., LLC v Bohnet, 2010 NY Slip Op 50327(U), a Nassau County District Court case, the tables turned on a debt collection company pursuing a credit card debt against a defaulting debtor. This assigned credit card debt lawsuit commenced in 2004, and resulted in a default judgment against the defendant, Patricia Bohnet, when she failed to appear in court. In 2009, Ms. Bohnet discovered the judgment when a debt collector contacted her at her place of employment. She moved for an order vacating and setting aside the default judgment and dismissing the complaint via an Order to Show Cause based upon the fact that she was never served with the complaint, and therefore had no notice to appear in court to defend herself.
When appearing on her motion, the Court concluded that the defendant was improperly served, and vacated her judgment. The Court ordered the plaintiff’s attorney to return with evidentiary proof that the defendant still owed a debt, and that the plaintiff, Erin Services, acquired a lawful assignment of a bona fide debt.
When Eltman, Eltman & Cooper, P.C., the plaintff’s lawyer, appeared and could not substantiate its case, even after submitting a copy of its file to the Court for inspection, the Nassau County District Court Judge not only dismissed the case with prejudice, but also sanctioned the plaintiff’s lawyer for various violations of the ethics requirements of Part 130 of the Uniform Court Rules.

The Nassau County District Court Judge held that the plaintiff’s lawyer:

• failed to improperly investigate whether the defendant actually lived at the address listed on the summons at the time of service;
• failed to supervise its process server with respect to making proper service upon the defendant;
• filed an affidavit of service that it knew or should have known included a false claim of personal service upon the defendant;
• filed a “verified complaint” without investigating the factual basis for its claims that First USA extended credit to the defendant, that the defendant failed to make required payments, and that the balance was duly demanded by First USA and was then due and owing;
• filed a “verified complaint” without investigating whether First USA has duly and properly assigned all right, title and interest in the account to the plaintiff, Erin Services Co., LLC, prior to the commencement of the action;
• failed to investigate whether the plaintiff had taken an assignment of a claim for the sole purpose of bringing suit upon it in violation of Judiciary Law §489;
• failed to investigate whether the defendant had been given notice of the assignment before the plaintiff commenced suit against the defendant as an alleged assignee;
• filed an affidavit from an assistant secretary of the plaintiff, falsely claiming “personal knowledge” of facts respecting the alleged underlying debt; among other findings.

The Nassau County District Court Judge dismissed the action with prejudice, and fined the debt collector-attorney a total of $14,800.00 in sanctions for failing to satisfy its ethical obligation under Rule 130 when initiating credit card lawsuits. The defendant was personally awarded $4,800.00 as compensation for being subjected to continued harassing and improper phone calls by the plaintiff’s debt collectors, and for having to take time off from work to appear in court and obtain judicial relief in this matter.
Posted in Civil Cases, Civil Law, collection laws, consumer law, consumer rights, Contract Law, credit card lawsuits, debt lawyer, debt settlement attorney, FDCPA, NY Lawyer

Understanding Special Proceedings Under Article 78 of the Civil Practice Law and Rules

What is Article 78?

Article 78 is the article of the Civil Practice Law and Rules (CPLR), which establishes the procedure for challenging the determinations of administrative agencies, public bodies or officers. These include every court, tribunal, board, corporation, officer, or other person, or aggregation of persons (CPLR 7802 [a]).

Properly stated, Article 78 provides the procedure in New York State for obtaining the relief previously obtained by writs of certiorari to review, mandamus or prohibition (CPLR 7801). Enacted in 1937, Article 78 is intended to supplant the three writs with a uniform procedure for obtaining the same relief. A proceeding brought under Article 78 is a special proceeding (CPLR 7804 [a]) and the parties to such a proceeding are referred to as “petitioners” and “respondents.”

What are writs of certiorari, mandamus and prohibition?

A writ is a written judicial order to perform a specified act. In New York State, the relief previously obtained by writs of certiorari to review, mandamus or prohibition, is now obtained by bringing a special proceeding under Article 78.

Certiorari is the writ by which the court reviews an action of an administrative agency, public body or officer for the purpose of establishing whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence (CPLR 7803 [4]). The purpose of an Article 78 proceeding in the nature of certiorari is to seek judicial review.

Mandamus is the writ by which the court makes a finding as to whether an administrative agency, public body or officer failed to perform a duty enjoined upon it by law (CPLR 7803 [1]). The purpose of an Article 78 proceeding in the nature of mandamus is to compel the performance of a duty.

Prohibition is the writ by which the court makes a finding as to whether an administrative agency, public body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction (CPLR 7803 [2]). The purpose of an Article 78 proceeding in the nature of prohibition is to prohibit a specified action.

Is Article 78 relief limited to certiorari, mandamus or prohibition?

Article 78 proceedings are generally intended to be limited in scope to seeking the relief previously obtained by writs of certiorari to review, mandamus or prohibition. A provision exists in Article 78, however, which creates a hybrid form of relief that encompasses certiorari and mandamus, incorporating elements of both. In practice, many Article 78 proceedings seek the relief provided by this provision.

This hybrid form of relief is provided in CPLR 7803 (3), which authorizes the court to make a finding as to whether a determination of an administrative agency, public body or officer was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed.

Where are Article 78 proceedings brought?

A proceeding under Article 78 generally must be brought in New York State Supreme Court in any county within the judicial district where the respondent made the determination complained of or refused to perform the duty specifically enjoined upon him by law, or where the proceedings were brought or taken in the course of which the matter sought to be restrained originated, or where the material events otherwise took place, or where the principal office of the respondent is located (CPLR 7804 [b] and 506 [b]). There are certain exceptions to this general rule.

An Article 78 proceeding against a justice of the New York State Supreme Court or a judge of a county court must be commenced in the Appellate Division in the judicial department where the action, in the course of which the matter sought to be enforced or restrained originated, is triable, unless a term of the Appellate Division in that department is not in session, in which case the proceeding may be commenced in the Appellate Division in an adjoining judicial department (CPLR 506 [b] [1]).

Where an Article 78 proceeding is brought against the Regents of the State University of New York, the Commissioner of Education, the Commissioner of Taxation and Finance, the Tax Appeals Tribunal (with certain exceptions), the Public Service Commission, the Commissioner or the Department of Transportation (relating to certain matters), the Water Resources Board, or the Comptroller or the Department of Agriculture and Markets, it must be commenced in New York State Supreme Court in Albany County (CPLR 506 [b] [2]). In certain circumstances, however, Article 78 proceedings against the Commission of Education can be brought in New York State Supreme Court in the county of residence of the petitioner (CPLR 506 [b] [3]). Article 78 proceedings against the New York City Tax Appeals Tribunal must be commenced in the Appellate Division of the New York State Supreme Court, First Department (CPLR 506 [b] [4]).

How long do I have to bring an Article 78 proceeding?

An Article 78 proceeding against an administrative agency, public body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner, or after the respondent’s refusal, upon the demand of the petitioner, to perform its duty; or with leave of the court where the petitioner, at the time such determination became final and binding upon him or at the time of such refusal, was under a disability because of infancy or insanity, within two years after such time (CPLR 217 [1]).

What types of judgments are awarded under Article 78?

In an Article 78 proceeding, the court can render a judgment granting the petitioner the relief to which he is entitled, or the court may dismiss the proceeding either on the merits or with leave to renew. If the proceeding was brought to review a determination, the judgment may annul or confirm the determination in whole or in part, or modify it, and may direct or prohibit specified action by the respondent (CPLR 7806).

Are monetary damages awarded in Article 78 proceedings?

Monetary damages, such as restitution, are obtainable in Article 78 proceedings. Any restitution or damages granted to the petitioner, however, must be incidental to the primary relief sought by the petitioner, and must be such as he might otherwise recover on the same set of facts in a separate action or proceeding suable in New York State Supreme Court against the same administrative agency, public body or officer in its or his official capacity (CPLR 7806).

Can enforcement of the determination under review be stayed?

On the motion of any party or on its own initiative, the court can stay further proceedings, or the enforcement of any determination under review, upon terms including notice, security and payment of costs. The enforcement of an order or judgment granted by the Appellate Division, however, may be stayed only by order of the Appellate Division or the New York State Court of Appeals. Unless otherwise ordered, security given on a stay is effective in favor of a person subsequently joined as a party to the Article 78 proceeding (CPLR 7805).

Selected Examples of Article 78 Proceedings

Matter of Tacos Ricos Corp. v New York State Liquor Authority, 58 AD3d 482 (1st Dept 2009). The petitioner, a restaurant, brought an Article 78 proceeding against the respondent, the New York State Liquor Authority, seeking review of the respondent’s determination to cancel the petitioner’s liquor license, to cause the petitioner to forfeit its bond, to require the petitioner to pay a civil penalty, and to deny the petitioner’s application for renewal of its liquor license. The respondent’s determination held that the petitioner’s establishment was in violation of law because the petitioner had allowed its premises to become disorderly by virtue of having imported women to dance with customers and to serve as waitresses. The respondent was unable, however, to adduce any evidence as to how the petitioner’s act of importing women to dance with its customers or serve as waitresses constituted allowing the premises to become disorderly within the meaning of the law. The Court held in favor of the petitioner, annulled the respondent’s determination, remanded the matter to the respondent and ordered the respondent to take certain action.

Matter of 25-24 Café Concerto Ltd. v New York State Liquor Authority, 2009 NY Slip Op 05410 (2d Dept 2009). The petitioner, a nightclub, brought an Article 78 proceeding against the respondent, the New York State Liquor Authority, challenging a determination of the respondent, which held that the petitioner violated certain provisions of law by serving alcoholic beverages to minors, and imposed civil penalties upon the petitioner. After an incident in which police responded to a complaint that the petitioner was serving alcohol to underage persons and issued summonses to two persons charging them with possession and consumption of alcohol by a minor, and based solely on the summonses issued by police to the alleged underage drinkers, the respondent brought charges against the petitioner for various violations of law and, as a result of an administrative hearing held in the matter, imposed civil penalties on the petitioner. The respondent, however, could not prove that the alleged underage drinkers were actually underage. Nor was there any proof that the beverages those persons possessed contained alcohol, or that the beverages were served to those persons by the petitioner. The Court, finding the summonses issued by the police to be insufficient as proof of any violations by the petitioner, held in favor of the petitioner and annulled the respondent’s determination.

Matter of Health Insurance Plan of Greater New York v Board of Assessors of Town of Babylon, 44 AD3d 1044 (2d Dept 2007). The petitioner, a health maintenance organization, brought an Article 78 proceeding against the respondent, the Sole Assessor of the Town of Babylon, challenging a determination of the respondent denying the petitioner’s application for exemption from real property taxes. As a health maintenance organization, the petitioner is exempt under the law from real property taxes and previously had always been granted an exemption by the respondent. The respondent was unable to demonstrate any rational reason for having withdrawn the petitioner’s tax exemption and failed to meet its burden of proving that the denial of the petitioner’s application was warranted. The Court found the actions of the respondent to be arbitrary and capricious and held in favor of the petitioner, annulling the respondent’s determination and ordering the reinstatement of the petitioner’s tax exempt status.

Matter of Vecce v Town of Babylon, 32 AD3d 1038 (2d Dept 2006). The petitioner, a property owner, brought an Article 78 proceeding against the respondent, the Town of Babylon, challenging a determination of the respondent’s zoning board denying the petitioner’s application for renewal of a previously approved building permit that had expired and for a zoning variance related to construction of a garage on his property. The petitioner had constructed a garage on his property pursuant to a building permit he was granted, which had expired. He then sought its renewal together with a variance for a rear yard setback of only a fraction of a foot, which was not substantial and had no adverse impact on the physical or environmental conditions of the neighborhood. The respondent denied the application and refused to issue the petitioner a certificate of occupancy for the garage. The Court held in favor of the petitioner, finding that the petitioner was entitled to a certificate of occupancy, remanded the matter to the respondent and ordered the respondent to take certain action.

Matter of Colaiacovo v Dormer, Sup Ct, Suffolk County, Oct. 30, 2008, Weber, J., index No. 20230/08. The petitioner, a Suffolk County resident, brought an Article 78 proceeding against the respondent, the Suffolk County Police Commissioner, seeking review of the respondent’s determination to cancel the petitioner’s pistol license. The petitioner held a valid pistol license to own and possess handguns within his home. The petitioner secured his handguns in a safe within his home that the petitioner’s wife was able to access. The petitioner’s wife, suddenly and without warning, retrieved one of the petitioner’s handguns from the safe, loaded it and used it to commit suicide. The respondent then canceled the petitioner’s pistol license although the petitioner was not at fault in any way. The Court held in favor of the petitioner, finding that the petitioner has a fundamental right to keep and bear arms, remanded the matter to the respondent and ordered the respondent to take certain action.

How do I know if an Article 78 proceeding is appropriate for me?

To be properly situated to bring an Article 78 proceeding, generally, you must be the subject of an adverse final determination of an administrative agency, public body or officer. You must have exhausted all other remedies, such as administrative appeals, and the Article 78 proceeding must be timely commenced. Only an attorney with expertise in Article 78 proceedings can advise you with certainty as to whether you have standing to bring a special proceeding under Article 78.

Since the statute of limitations for commencing an Article 78 proceeding is short, it is imperative that you consult with an attorney specializing in this area of practice as soon as possible. Failure to act within the time limits imposed by law may result in the forfeiture of your rights in the matter.

Do I need a lawyer to bring an Article 78 proceeding?

Because of the complexities of Article 78, it is highly advisable to retain a NY Attorney who specializes in such proceedings. While there are some types of legal matters in which it is not terribly ill-advised to represent oneself – such as in a small claims action, where there is not much at stake and where the court has created a framework and a forum for litigants to represent themselves – in most cases there is simply no substitute for professional counsel. Attempting to represent oneself in an Article 78 proceeding could lead to the loss of the case and an irreversible forfeiture of rights. For these reasons, you should always consult with, and be represented by, an attorney if you intend to bring an Article 78 proceeding.

Questions? Call us and speak with our Attorneys right now, for free. (631) 747-0356

Posted in Article 78, Civil Cases, Civil Law, Civil Lawsuit, Land Use Zoning, Liquor Licence, NY Lawyer, Zoning Board of Appeals

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