How to File an Article 78 Proceeding in New York

To file an Article 78 proceeding in New York, you prepare a Verified Petition and Notice of Petition, buy an index number from the County Clerk for $305, and serve the papers on the government agency at least 20 days before the return date you set for court. Article 78 is the vehicle New York law provides for challenging a government agency’s decision or its refusal to act. It is not a lawsuit for money damages; it asks a judge to overturn, modify, or compel a specific government action. A few threshold questions determine whether your case can proceed at all, so work through those before drafting anything.

Use Every Internal Appeal First

Courts will not hear an Article 78 petition until you have used every internal appeal the agency offers. If the agency has a formal appeals process, a rehearing option, or an internal review board, you must go through it before filing in court. Skip this step and the judge will almost certainly dismiss your case.¹

The dismissal is usually without prejudice, so you can refile after completing the internal process, but only if you haven’t run out of time. Check the agency’s own rules before you draft. If there’s an appeal you haven’t taken, take it first.

Confirm You Have Grounds Under CPLR 7803

New York law limits Article 78 to four specific questions about what the agency did wrong. Your petition has to fit at least one:

Failure to act. The agency had a legal duty to do something and didn’t. Classic example: you applied for a license or benefit, met the requirements, and the agency sat on the application or refused without justification.
Acting beyond authority. The agency took action it had no legal power to take, or is about to. A zoning board granting a variance it has no statutory authority to approve fits here.
Arbitrary or unlawful decision-making. The agency violated its own procedures, made a legal error, or reached a decision so unreasonable that no rational person reviewing the same facts would have reached it. This is the broadest and most commonly invoked ground, and it includes challenges to excessively harsh penalties.
Lack of substantial evidence. After a formal hearing where testimony was taken, the agency’s decision isn’t supported by enough real evidence. This higher bar applies only when the agency was required by law to hold an evidentiary hearing.

These four are exhaustive. If your complaint doesn’t fit one of them, Article 78 isn’t the right vehicle.²

Know Your Filing Deadline

You generally have four months from the date the agency’s decision becomes final and binding to file. A decision becomes final and binding once you have received it and exhausted (or been denied) any internal appeals. If the agency simply refused to act after you demanded it do so, the clock runs from the date of refusal.³

Four months sounds generous, but shorter deadlines exist for specific challenges. Decisions by zoning boards of appeals carry a 30-day filing deadline under the Town Law, Village Law, and General City Law. Other specialized statutes may impose their own shorter windows. If you’re unsure which deadline applies, assume the shortest one and work backward. Missing the deadline by even a day means the court cannot hear your case.

Prepare the Petition and Supporting Papers

Two documents form the backbone of every Article 78 proceeding.

The Notice of Petition is the cover document telling the agency it’s being challenged. It identifies you (the petitioner) and the agency or officer (the respondent), states the court, and sets a return date for the first court appearance. You pick the return date, but it must be at least 20 days after you serve the papers on the agency.⁴

The Verified Petition is where you make your case. Lay out the factual background, identify the specific agency decision or inaction you’re challenging, explain the harm you’ve suffered, and connect the facts to one of the four legal grounds above. End with a clear statement of what you want the court to do. Verified means you sign it under oath, typically before a notary, swearing the facts are true.⁴

Attach supporting exhibits. The most important is a copy of the agency’s final written decision. Include correspondence, denial letters, or hearing transcripts that support your factual narrative. You also need to complete a Request for Judicial Intervention (RJI), which triggers assignment of a judge. Standard court forms are available through the New York State Unified Court System.⁵

Pay the Filing Fees or Apply for a Waiver

Opening the case requires two fees paid to the County Clerk: $210 for the index number (the unique case identifier that goes on every document) and $95 for the RJI, totaling $305.⁶

If you can’t afford the fees, apply for a Poor Person order under CPLR 1101, which waives court costs and filing fees. The application requires a sworn statement that you lack sufficient means to pay, plus documentation of income, bank accounts, property, and debts. Include benefit award letters, pay stubs, or recent tax returns as proof.⁷

Two catches. If the court denies the waiver, you have 120 days to pay the filing fee or your case gets dismissed. If the waiver is granted and you later recover money through the proceeding, the court may deduct the waived fees from your recovery before distributing the funds to you.⁸

File Electronically or on Paper

Most New York Supreme Court counties now require Article 78 proceedings to be filed electronically through the New York State Courts Electronic Filing system (NYSCEF). Statewide mandatory e-filing for Article 78 cases took effect in July 2025, with Erie County following in January 2026.⁹

If you’re representing yourself without a lawyer, you’re automatically exempt from mandatory e-filing, though you can opt in. Attorneys who lack the necessary equipment or internet access can also opt out by certifying their inability to e-file. If you’re exempt or choose not to e-file, file your papers in hard copy at the County Clerk’s office.⁹

Serve the Agency (and the Attorney General for State Cases)

Once you have your index number on all your documents, serve the respondent agency with copies of the Notice of Petition, the Verified Petition, and the RJI. Service must happen at least 20 days before the return date.⁴

If you’re proceeding against a state agency or state officer, you must also serve the New York Attorney General in addition to serving the agency itself. That means delivering the papers to an assistant attorney general at the AG’s office in the county where you filed, or at the nearest AG office if there is none in your county.⁴ Forgetting the AG service is one of the most common mistakes in state-agency Article 78 cases, and it can result in dismissal.

After service, the person who delivered the papers prepares an Affidavit of Service, a sworn statement signed before a notary describing when, where, and how the papers were delivered. File the affidavit with the court before the return date.¹⁰

What Happens After You File

Once properly served, the agency must file a verified answer at least five days before the return date. Along with the answer, the agency has to file a certified transcript of the administrative record from the underlying proceeding. That transcript becomes the factual record the court reviews. If the agency fails to file an answer or transcript, the court can enter judgment in your favor or order the agency to respond.⁴

If you need to reply to new material raised in the agency’s answer, serve your reply at least one day before the return date.³

The return date is not a trial. It’s the first appearance before the assigned judge. The judge may hear oral arguments, ask questions, or simply take the papers on submission and issue a written decision later. Article 78 cases are decided on the papers far more often than through live testimony, so the quality of your written petition matters enormously.

If You Raised a Substantial Evidence Claim

When a petition raises the substantial evidence ground, the Supreme Court judge cannot decide that question. After disposing of procedural objections like jurisdiction or timeliness, the judge must transfer the case to the Appellate Division for a full review of the record.⁴ If substantial evidence is one of your grounds, build that possibility into your timeline.

Ask for a Stay if You Need One

Filing an Article 78 petition does not automatically pause whatever the agency decided. If the agency revoked your license, denied your permit, or ordered some action, that decision remains in effect while your case is pending unless you specifically ask for a stay. You can request one from the court at any time. The court has discretion to grant it and may impose conditions such as requiring you to post a security bond or pay costs.¹¹ If the agency’s decision is causing immediate, irreparable harm while your case works through the system, request a stay early.

What the Court Can Order

The court has broad authority over the final judgment. It can annul the agency’s decision entirely, confirm it, or modify it. It can direct the agency to take a specific action or prohibit the agency from doing something. The court can also dismiss your petition with leave to refile if the proceeding has a correctable defect.¹²

Money damages are available only in a limited way. Any financial recovery must be incidental to the main relief you’re seeking, and it must be the kind of recovery you could have obtained in a separate lawsuit against the same agency. Article 78 is fundamentally about fixing government action, not about compensation. If your primary goal is collecting damages, you likely need a different type of lawsuit.¹²

Appealing a Loss

An unfavorable Article 78 decision can be appealed to the Appellate Division. You file a notice of appeal and then perfect the appeal by submitting your brief and the record within a set timeframe, typically six months from the notice of appeal. The Appellate Division reviews the case based on the written record and briefs. Missing the deadline to perfect results in automatic dismissal, and vacating that dismissal requires a separate motion.¹³ Each Appellate Division department has its own procedural rules for formatting and submitting the appeal, so check the rules for the department covering the county where your case was filed.

1
New York State Senate. New York Code CVP 7801
2
New York State Senate. New York Code CPLR 7803 – Questions Raised
3
New York State Unified Court System. How to Commence an Article 78
4
New York State Senate. New York Code CPLR 7804 – Procedure
5
New York State Unified Court System. RJI Forms (Request for Judicial Intervention)
6
New York State Unified Court System. Filing Fees
7
New York State Senate. New York Code CPLR 1101 – Motion to Waive Costs, Fees, and Expenses
8
New York State Unified Court System. Instructions for Fee Waiver Application – Initiation of Proceeding
9
NYCOURTS.GOV. Rules – E-Filing
10
NY CourtHelp. Filing an Affidavit of Service
11
New York State Senate. New York Code CPLR 7805 – Stay
12
New York State Senate. New York Code CPLR 7806 – Judgment
13
Appellate Division – Second Judicial Department. How a Case Is Decided