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Housing Court Appeal vs. Article 78 proceeding?

NYC Housing Court Practice/Procedures

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Housing Court Appeal vs. Article 78 proceeding?

Postby raym1 » Tue Jan 29, 2008 8:52 pm

Hi! I'm a rent stabilized tenant living in Manhattan, and I recently finished up a housing court case. Unfortunately, much to my disappointment, the case did not end up with a conclusion that was satisfactory to me. Because of that, I am currently working on an appeal.

I was recently reading an article in the NY Times that discussed an individual who also had a housing court case that he was appealing, but he decided to pursue an Article 78 proceeding in which he could name the Judge, as well. This person believed the judge on his case had engaged in misconduct.

My circumstances are similar to that; I feel the judge in my case acted improperly and rendered a verdict that had little to do with the evidence or reality. Because of that, along with the Times article I mentioned above, I am wondering if I should also be looking at Article 78 proceedings as well as the appeal. I actually know a bit about Article 78 proceedings, and in fact years ago I was involved in one. At that time it involved a decision by an administrative agency, which made using the article 78 process a bit more clear. In this instance though, I am having some difficulty understanding the purpose of it, if the ability to appeal is available.

Anyone with experience on this end of housing court proceedings? I'm hoping for some insight as to when one would pursue an Article 78 out of an administrative housing court process, and if there is any particular gain to be had by pursuing both an appeal and an article 78.

My thanks in advance for any feedback from this community.
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Postby TenantNet » Tue Jan 29, 2008 9:03 pm

The normal avenue of appeal from housing Court is the Appellate Term (followed by the Appellate Division and finally the Court of Appeals).

The grounds to bring an A78 (Article 78 of the CPLR) are based on the appealed decision being arbitrary, capricious and an abuse of discretion ... certainly many Housing Court cases fall into that category. Article 78s are usually against governmental agencies such as DHCR although I don't know if there's some theory where an Article 78 could be pursued as you suggest. Nor did I see the NY Times article. Do you have a URL or title/date for the article?
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Postby raym1 » Wed Jan 30, 2008 12:39 am

Hey "tenant.net", thanks for your response.

I went looking for the article, and the more I thought back to it, the more I realized that I think it was the "New York Law Journal" and NOT the NY Times. One of the attorneys in the pro se office at 111 Centre St showed it to me on a visit. Sorry about that. I don't have any online access for the Law Journal, however I did locate a url with a pdf file that has the court's decision in the case. I hope that will do instead-- it does seem to explain (albeit in a lengthy manner) what the case was all about and what brought them into an Article 78 proceeding.

Thanks again for your response and your interest. If you have the time to look at the pdf, let me know what you make of the use of the Article 78 under the circumstances. I know it seems like an unusual approach but this judge treated me so poorly that I would hate to miss any opportunity.

http://www.nylawyer.com/adgifs/decisions/103107cahn.pdf
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Postby TenantNet » Wed Jan 30, 2008 6:04 am

First paragraph indicates that they seek a writ of mandamus (one of the things that A78 cover but usually to compel an agency to make a decision after a long delay) to compel a Housing Court judge to disqualify himself regarding two HC cases and to vacate a prior stipulation. That is not an appeal. They are doing it by seeking an Order to Show Cause (OSC).

A few more paragraphs down it appears this is part of extensive tangle of motions and stipulations, in many cases difficult to follow. Also -- which could be the case here -- some parties and their attorneys seek end-runs around courts if they feel a case isn't going well. It a tactical decision that in some cases works and in other cases backfires ... often called "forum shopping." I know of one case where that's going on now (no decision yet).

I haven't read beyond the first two pages so there may be more there than what I saw, but it seems the facts are so particular to this instance, it might not be a general way to approach cases (or the alternative you seek). In any case, things like this get so complicated it surely is advisable to seek legal counsel to decide whether to proceed along this path, and to help if you do decide this road.

Just my thought and others might have different observations (especially practicioners). In general, appeals and A78s are complicated. Unless a pro se tenant really knows what they are doing, I'd proceed carefully.

And BTW, Herman Cahn is a horrible judge.
Last edited by TenantNet on Wed Jan 30, 2008 11:41 am, edited 1 time in total.
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Postby raym1 » Wed Jan 30, 2008 8:32 am

hey, thanks very much for taking a look. I think you hit it dead on when you refer to a "tangle of motions" and on..... I really was having a bit of trouble understanding it, which is why I was confused by the whole thing. I believe it didn't end well for the guy who filed it. Lebovits was threatening the guy with disciplinary action over it (the fellow that filed it is a lawyer), and it sounded like he wound up backing down on it, given that threat. I guess when a judge files a disciplinary action against a lawyer it could mean deep, deep poo :)


thanks again for looking at that.
Last edited by raym1 on Mon Apr 07, 2008 11:32 pm, edited 1 time in total.
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Postby cardinalfang » Wed Jan 30, 2008 10:42 am

An article 78 proceeding against the judge is NOT, I repeat NOT the way to correct an erroneous ruling by the judge after a trial or on a motion. Look at the last page of that decision and see what happened to the lawyer who brought the case. He was sanctioned for it -- fined $1,000 -- because bringing the case at all was frivolous. Let that be a lesson in how NOT to pursue a remedy in the courts.

Concentrate on your appeal.
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Postby lofter1 » Wed Jan 30, 2008 5:55 pm

raym1 wrote:
... My problem was with Lebovits ... I hope the appeals court will be a bit more fair then Lebovits was.

Isn't Lebovits considered one of the more pro-tenant judges in Manhattan Housing Court?
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Postby raym1 » Wed Jan 30, 2008 11:46 pm

well he wasn't very pro-tenant in my case, that's for sure.
Last edited by raym1 on Mon Apr 07, 2008 11:33 pm, edited 1 time in total.
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Article 78

Postby luckyredpr » Wed Mar 26, 2008 7:02 pm

Can anyone tell me where I can get more information on Article 78?

Does anyone have a link to the New York Law Journal Article?

Thank you.
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