News & Insights



Real Property

What do you do, as a private party, when you want to overturn or halt an administrative agency’s action?  As we previously discussed in the context of private corporations, you file an Article 78 petition.  This type of proceeding is commonly used for everything from attempting to overturn an e-cigarette ban, to a declaratory judgment to force the city to accept and post advertisements expressing a particular point of view on religion.

Recently, various groups have utilized Article 78 seeking to reverse the redesign of certain streets to exclude bike lanes and remove bike-share stations.  The bike-share suits have sought to challenge bike-share stations in front of the Plaza Hotel, in Soho’s Petrosino Square, at 99 Bank Street, and a Brooklyn station in front of 150 Joralemon Street.  The two bike lane suits have sought to remove bike lanes in Kips Bay on 37th Street between First Avenue and the East River Greenway and in Park Slope, on Prospect Park West between Union Street and Bartel Pritchard Square.

The law is well settled that courts may not overturn an administrative agency’s decision or action if that action had a rational basis and was not arbitrary and capricious.  Goldstein v. Lewis, 90 A.D.2d, 748, 749 (1st Dep’t 1982).  Typically, an administrative agency’s decision will not be overturned simply because the court would have reached a contrary conclusion.  Sullivan County Harness Racing Assoc. v. Glasser, 30 N.Y.2d 269, 278 (1972).  Instead, if a court finds that the action does not have a sound basis in reason and was taken without regard to available facts, that action will be deemed arbitrary.  Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester Co., 34 N.Y.2d 222, 231 (1974).

This is no easy feat, as proved by the recent bike lane and bike-share station litigation.  The bike-share station cases and the bike lane case disputing the Kips Bay bike lane have been dismissed.  The dismissed cases have common points – namely, failing to meet the statute of limitations and failing to prove that DOT acted in an arbitrary and capricious manner.  As was pointed out by more than one court, the fact that the plaintiffs disagreed with the location chosen by DOT does not in and of itself make DOT’s actions arbitrary and capricious.



Recent Posts

Impact of Shorter COVID-19 Quarantine on Workplaces

On Monday, the CDC announced changes to its recommended isolation and quarantine time from 10 days to 5 days for asymptomatic people with COVID-19. They recommend that people leaving isolation after 5 days continue to wear a mask for the following 5 days. The CDC also...

Restaurants Sue Over Vaccine Mandate

Restaurant operators sued Mayor Bill de Blasio and New York City over Key to NYC, the new indoor vaccine mandate program, on August 17-the same day the mandate went into effect. A group of restaurants in Staten Island, through the Independent Restaurant Owners...

Financial Regulators’ New Target: Social Media Influencers and SPACs

The Financial Industry Regulatory Authority (“FINRA”) will conduct three new regulatory sweeps in an effort to combat various activities causing extreme fluctuations in the financial markets. FINRA has chosen to target special purpose acquisition companies (“SPACs”),...

Does WARN Apply to Virus Closures?

Enterprise, in Benson et al. v. Enterprise Leasing Co. of Florida LLC et al., has tried to argue that the Worker Adjustment and Retraining Notification Act (“WARN”), through its natural disaster exception, does not apply to closures caused by COVID-19. Two Florida...