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Also, §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL typically follows this protocol.

October 14, 2014

Appealing administrative decisions


Appealing administrative decisions
Modlin v Kelly, 2014 NY Slip Op 06866, Appellate Division, First Department

Typically a disappointed individual challenges an administrative decision by bringing an Article 78 action.  

In reviewing an administrative determination that was made without a hearing the issue is whether the action taken had a "rational basis" and was not "arbitrary and capricious" An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts." If the determination has a rational basis, it will be sustained, even if a different result would not be unreasonable. Ward v City of Long Beach, [20 NY3d 1042. .

In contrast, if the matter was determined after an administrative hearing, should the petition before Supreme Court raise a question of whether an administrative determination was supported by substantial evidence the proceeding is to be transferred from the Supreme Court to the Appellate Division to address that issue [See §7804[g] of the Civil Practice Law and Rules.]

Where the challenged determination was judicial or quasi-judicial in nature and made on the basis of a hearing at which evidence was taken pursuant to direction by law an aggrieved party is entitled to have a court test the legal sufficiency of the evidence relied upon by the agency by simply requesting that it do so.

Further, there is essentially nothing to be “proved” in the course of the appeal as all evidence has already been adduced at the administrative hearing and findings made based on such evidence. Accordingly, the challenging party’s task is not to prove transactions or occurrences, but rather to present legal argument on the substantial evidence issue.

What constitutes substantial evidence? In Robert Martin v Board of Trustees, 34 AD3d 580, the Appellate Division commented that "Substantial evidence has been defined as such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact." Further, said the court, “it is the function of the administrative agency or the Hearing Officer, not the reviewing court, to weigh the evidence or assess the credibility of witnesses and determine which testimony to accept and which to reject," citing Sahni v New York City Bd. of Educ., 240 AD2d 751.

In Modlin the court pointed out that Supreme Court "improperly transferred” the matter to the Appellate Division because the determination challenged “was not made pursuant to an administrative hearing.” The court then addressed the merits of the appeal “in the interest of judicial economy,” citing DeMonico v Kelly, 49 AD3d 265.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_06866.htm
.

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