Order to Show Cause
(Article 78 Proceeding) (NY)

Summary

This Order to Show Cause (Article 78 Proceeding) (NY) is a standard form that attorneys can use to notify their adversary that a special proceeding under Article 78 of New York's Civil Practice Law and Rules (C.P.L.R.) is pending in New York State Supreme Court. This template contains practical guidance, drafting notes, and optional clauses. An Article 78 proceeding is a special proceeding under the C.P.L.R. in which parties typically seek judicial review of public agencies' administrative determinations. See Burke's Auto Body, Inc. v. Ameruso, 495 N.Y.S.2d 393 (1st Dep't 1985). Actions under Article 78 replace common law writs of mandamus, prohibition, and certiorari through which parties previously could seek similar relief. See N.Y. C.P.L.R. § 7801. To commence a special proceeding, you must file a verified petition—not a summons and complaint—with the court. See N.Y. C.P.L.R. § 7804(d). However, to acquire personal jurisdiction over the respondent, you must serve your petition with either: • A notice of petition –or– • An order to show cause See N.Y. C.P.L.R. §§ 403(a), 403(d), 7804(c). After you commence an Article 78 proceeding, the court generally holds a hearing to determine the issues in the proceeding—similar to a hearing on a party's motion. See N.Y. C.P.L.R. § 7804(g). If your client will suffer immediate irreparable injury due to an administrative action or determination, consider proceeding by order to show cause. Doing so will allow your client to obtain immediate, short-term relief on an expedited basis pending the court's decision on the Article 78 proceeding. An order to show cause is an application made to the court—on short notice—to obtain an order directing the respondent to show cause why the petitioner should not receive the relief sought. The primary advantage of filing an order to show cause as opposed to a notice of petition is that it shortens the prescribed deadlines and allows the court to hear your proceeding on an expedited schedule. The C.P.L.R. permits orders to show cause in proper cases. See N.Y. C.P.L.R. § 2214(d). This includes cases in which: • There is genuine urgency. Parties commonly use orders to show cause to shorten the C.P.L.R.'s notice requirements. See N.Y. C.P.L.R. 2214(d); 22 NYCRR 202.8-d. • A stay is required. A party may file an order to show cause to obtain emergent temporary relief—such as a stay or a temporary restraining order—to maintain the status quo until the court hears the matter. 22 NYCRR 202.8-d. • A statute or rule requires an order to show cause. Some statutes or rules explicitly require the court to direct the notice a movant must provide, which the court can do through an order to show cause. 22 NYCRR 202.8-d; see, e.g., N.Y. C.P.L.R. 5015(a) (requiring a party seeking relief from judgment to make a motion with notice directed by the court). Petitioners typically proceed by order to show cause to stay an administrative action or enforcement of an administrative determination pending the resolution of the Article 78 proceeding. See N.Y. C.P.L.R. § 7805. This type of emergent relief is akin to moving for injunctive relief by order to show cause in a civil action. See Ricelli Enters., Inc. v. State of N.Y. Worker's Comp. Bd., 2012 N.Y. Misc. LEXIS 2241 (N.Y. Sup. Ct. Apr. 30, 2012). This template applies to Article 78 proceedings commenced in New York State Supreme Court. See N.Y. C.P.L.R. § 7804(b). This template does not cover the limited situations in which you must file your proceeding as an original action in the appellate division, such as when you seek relief against a supreme court justice or county court judge. See N.Y. C.P.L.R. §§ 506(b)(1), 7804(b). For more information on commencing an Article 78 proceeding, see Article 78 Proceedings: Commencing a Proceeding (NY). For a model annotated petition, see Petition (Article 78 Proceeding) (NY). For a model annotated notice of petition, see Notice of Petition (Article 78 Proceeding) (NY). For more information on filing orders to show cause in New York Supreme Court, see Orders to Show Cause and Ex Parte Applications (NY). For a detailed discussion of Article 78 proceedings, see Weinstein, Korn & Miller, New York Civil Practice: CPLR P 7801–7806.