Administrative Law

State Administrative Procedures Act (SAPA) is the primary statute governing NY admin law.
• SAPA – Statutory Procedures
o Plain language – SAPA § 200
o Rule-Making Procedures
▪ Substantial compliance
▪ Notice of Proposed Rule
• Notice must include, among other info:
o Statement of authority for the rule
o Complete text of the proposed rule, or, if the rule exceeds a certain length, a
description of the rule and the website address where full text is posted
o Regulatory impact statement, a regulatory flexibility analysis, and a rural area
flexibility analysis
o Date, time, and place of any public hearings (SAPA § 202[1][f])
▪ Not required before the adoption of a rule, unless a statute specifically
requires it
• Prior to publication of a proposed rule in the state register, an agency will reach out to
regulated entities affected by the rule
▪ After a proposed rule is publicized in the state register, the agency will solicit and respond
to any public comments before adopting the rule
▪ Notice of Adoption
• Published in the state register when agency is prepared to adopt the rule
• Notice must include, among other info:
o Statement of statutory authority for the rule
o Complete text of rule as adopted, or if rule exceeds a certain length, a description
of the rule and the website address where full text is posted
o Any revised regulatory impact statement, regulatory flexibility analysis, and rural
area flexibility analysis
o Assessment of the public comments submitted to the agency or, if the assessment
exceeds a certain length, a summary of the assessment (SAPA § 202[5][c])
• Agency must also publish, or otherwise make the public assessment of the rule
available
o Filing and Effective Date – SAPA § 203
▪ A rule isn’t effective until it is filed with SOS and notice of adoption is published in State
Register (SAPA §§ 202[5], 203)
o Publication of Rules
▪ Rules published in State Register and the Official Compilation of Code, Rules and
Regulations of the State of New York (NYCRR)
▪ All rules are categorized
• SAPA – Adjudication
o Statutory Authority: SAPA § 102; SAPA Art. III
▪ Adjudicatory proceedings is any activity which is not a rule-making proceeding or an
employee disciplinary action before an agency. . . in which a determination of the legal
rights, duties or privileges of named parties thereto is required by law to be made only on a
record and after an opportunity for a hearing
o Applicability of SAPA Art. III
▪ SAPA does not indicate when an adjudicatory hearing is required
▪ To determine if an adjudicatory hearing is required, examine the agency’s enabling statute
• Due process may require an administrative hearing, even where the statute does not
require it (e.g., statute is affecting property rights)
 ▪ Licensing: “Notice and opportunity for hearing” and “opportunity to be heard” (SAPA §
401[1])
o Where a hearing is required by law, SAPA Art. III minimum due process standards apply. Such
standards are:
▪ (1) A hearing before an impartial decision-maker,
▪ (2) With notice and opportunity to be heard, and
▪ (3) A determination based upon and limited to a record.
o Due Process Rules for hearing
▪ Ex Parte Communications Rule
• Questions of Fact – ALJ or Board cannot communicate, directly or indirectly, in
connection with any issue of fact, with any person or party
• Questions of Law – ALJ cannot communicate w/ the parties about questions of law
w/o notifying all parties to the proceeding
• ALJ can get advice and aid from uninvolved agency staff (not involved in
investigative or prosecutorial function in the case under review)
o Agency head may communicate with uninvolved staff to determine how a
decision will affect the program
▪ Hearing must be before an impartial hearing officer (aka ALJ)
• An officer may be disqualified § 303 based on a motion on the record
• Grounds for disqualification are not provided in SAPA, must look to other sources of
law, such as:
o Judiciary Law § 14 – CoA has held that this section of law applies to all judges
▪ Similar to MPRE rule – if the judge is related to any party (by blood or by
marriage) to one of the parties in the controversy, then the judge would be
disqualified
o Judge was a former prosecutor
▪ Arose in a couple of cases involving the NYS Liquor Authority – Matter of
Beer Garden; Matter of GM Corp.
o Pre-Judgment of Facts
▪ Matter of 1616 Second Ave. Rest. V. New York State Liq. Auth. (1990) – If
you indicate any pre-judgment of facts, you can be disqualified, but
familiarity of facts with the case (due to info in the news) does not warrant
recusal
o Financial Interest in Outcome of Case
▪ SAPA outlines powers of the ALJ
• Roughly equivalent to a trial judge in a civil proceeding
▪ Timing of Hearings
• Hearing must be held “within a reasonable amount of time” § 301[1]
• Some agencies or statutes may implement stricter deadlines for hearings, but if no
other statute exists, SAPA applies
• “Unreasonable agency delay”
o This could divest the agency of jurisdiction and would require dismissal of a
matter (similar to SOL period). Mere passage of time is insufficient to warrant
dismissal of a proceeding. Balancing factors would be considered by agency and
court – basically, litigant must show actual prejudice due to delay of the
proceeding (e.g., litigant must show that they lost evidence or witnesses due to
delay of hearing by agency)
▪ Notice of Hearing
• SAPA § 301(2)
• Must include:
 o Statement of time, place, nature of the hearing
o Statement of legal authority and jdx where hearing is to be held
o Reference to particular sections of statutes and rules involved
o Short and plain statement of matters asserted
o Statement that interpreter services shall be made available to deaf persons at no
charge
• Must be reasonably specific, in light of circumstances to (1) apprise party of charges,
and (2) allow for preparation of adequate defense
▪ Opportunity to be Heard
• All parties have opportunity to present written argument on issues of law, evidence
and argument on issues of fact, and engage in cross-examination
▪ Record
• Agency must make a complete record of agency proceeding
• Contents of record governed by § 302[1]
▪ Final Determination of Agency
• Must be in writing or stated on the record
• Must include findings of fact, conclusions of law, and reasoning for the decision
• Where the agency head is reviewing an ALJ’s recommendation, it must give
explanations when it departs from the ALJ’s decision w/r/t facts of law or findings of
fact
o Discovery – SAPA § 305
▪ Not required under SAPA
▪ Agency may determine no discovery is permitted, with some exceptions:
• Agency seeks to revoke a license that was previously granted
• A fair hearing may require that certain complaints be turned over
• Freedom of Information Law
▪ Hearing
• Rules of Evidence
o Unless otherwise provided by statute, an agency need not follow the rules of
evidence followed by a federal court
o Hearsay evidence is admissible and can be the basis for an enforcement decision
▪ So, the fact that evidence is hearsay goes to the weight of the evidence when
making factual determinations
▪ Hearsay evidence must still be sufficiently reliable, relevant, and probative
to provide a basis for an agency determination
• Privilege
o Must give effect to privileges like ACP, Work-Product Privileges
• Exclusionary rule
• Burden of proof is on the party that initiated the proceeding
o Dept. initiated an enforcement proceeding? Dept. bears burden
• Standard of proof
o Substantial Evidence
▪ Such relevant evidence that a reasonable mind may accept to support a
finding of fact
▪ Much lower standard than a preponderance of evidence standard (civil) or
beyond a reasonable doubt (criminal)
▪ Only demands that an inference is reasonable and plausible, but not
necessarily the most probable
 • So long as the evidence is reasonable and plausible, the agency can
make that factual finding, even if the weight of the evidence goes
against this finding
o Due process may require the preponderance of the evidence standard to apply at
the agency proceeding
▪ Liberty issue is at interest? Preponderance of evidence standard applies
▪ Agencies may provide, by statute, that preponderance of evidence standard
applies when property issues are at issue
o Right to Counsel
▪ All persons at a hearing are permitted to be represented by an attorney or
another individual (e.g., an environmental consulting firm)
o Res judicata (claim preclusion) or collateral estoppel (issue preclusion)
▪ Consider whether party had a full and fair opportunity to litigate
• If so, the agency determination will be given res judicata and collateral estoppel effect

Power to Acquire Information

• Administrative investigations
o Administrative searches
▪ Searches require a warrant in most circumstances
• Exception? Closely regulated businesses
o Regulatory scheme must be pervasive and include detailed standards of the
operation of business [. . .]
o Mere fact that you have to register with an agency is insufficient alone to be
considered a closely regulated business
▪ Exclusionary rule
• In most proceedings, evidence gained in violation of the 4A is excluded
• Usually, evidence gained in violation of the 4A is excluded
• With agency proceedings, a balancing test is applied
o Ask whether probable determinable effect of the exclusionary rule is balanced
against
• With agency proceedings, a balancing test is applied – Court asks whether
o Investigatory Proceedings – Civil Rights Law § 73
▪ Provisions of the Civil Rights Law govern hearings for investigatory proceedings, but do
not govern hearings for investigatory proceedings of agencies not expressly enumerated in
the statute
▪ Requires that those summoned to proceeding can have lawyer
• Administrative Subpoenas
o Subpoenas ad testifacndo – require witnesses to testify
o Subpoenas ducse tecum – produce documents
o Some agencies have subpoena power
▪ If agency has subpoena power, the ALJ presiding over the proceeding may grant a
subpoena
• Important for pro se individuals – attorneys can issue subpoenas, but if you don’t have
an attorney, you have to ask the ALJ
o If you wish to quash or modify a subpoena issued by the ALJ, you would move before that ALJ
to quash/modify

Judicial Review of Agency Proceedings

• Preconditions to Judicial Review
o Standing
 ▪ Suffer an unfavorable decision and those who have a stake in the decision, but whose
injury is less direct
▪ Requirements for standing:
• (1) Injury in Fact: Harmful (economic or non-economic) effect on petitionr
• (2) Zone of Interest: Interest sought to be protected falls within the statute
o Exhaustion of Administrative Remedies
▪ Exceptions:
• (1) Statute agency is acting under is facially unconstitutional
• (2) Agency is acting wholly beyond its grant of power
▪ Party must also preserve any objections to the agency’s action by making objections at the
agency level
• If the party fails to do so, it cannot raise these issues for the first time in front of court
• Objections include evidentiary objections; as applied constitutional objections
o Ripeness
▪ Must pursue all avenues of relief within the agency before going to the courts
▪ Pre-enforcement review is available only if the challenge is purely legal and further facts
wouldn’t contribute to accurate resolution of the controversy
o Finality
▪ Interlocutory relief is rarely available; requires grave or irreparable harm
▪ Unless a shorter time is provided in the law, a proceeding must be brought within 4 months
after agency determination became binding on petitioner
• Review of Agency Actions
o Procedural Basis of Review
▪ CPLR Art. 78 – Allows courts to review agency actions
• “Special proceeding”
• Subject to the restrictions of Art. 78
• Commenced by petition; filing party is the petitioner, agency is the respondent
• Designated in the case law with “Matter of”
▪ Declaratory Judgment Actions – CPLR 3001
• Certain challenges to agency rule actions
• Not subject to the procedural restrictions of CPLR 78
o Determinations of Law
▪ Standard of review – whether the agency’s legal decision is affected by an error of law or
arbitrary and capricious
• Court gives deference to the agency – similar to Chevron deference under federal law
• Agencies entitled to deference on statutory interpretation – so long as their
interpretation is supported by a rational basis, the courts will uphold their
determination
o Court only gives deference to agency if interpretation of the statute requires an
understanding of the underlying facts behind the statute in question
o Findings of Fact
▪ After formal adjudicatory hearing pursuant to SAPA Art. III, the standard of review of the
agency’s finding of fact is “substantial evidence” – CPLR 7803[4]
• No formal hearing? Standard is “arbitrary and capricious”
▪ After CLPR 78 hearing? Case transferred from Sup. Ct. to Appellate Division for judicial
review
o Discretionary Determinations
▪ “Abuse of discretion” standard
• Discretionary act or policy decision may only be set aside if it is abuse of discretion or
“arbitrary and capricious”
 ▪ Penalty determinations: “shock the conscience” standard
• Very difficult to set this aside

Public Disclosure
• Freedom of Information Law (FOIL) – Public Officer’s Law #6
o Broad public access to state and local documents
o Every agency must make available for public inspection and copying except for certain
information that may be excepted
▪ Both “agency” and “record” are defined broadly
o Creates a broad presumption of public availability (of agency records), and absent the
applicability of very narrowly tailored exceptions, the agency must make those records
accessible
o Exceptions from disclosure:
▪ (1) Records specifically exempted from disclosure by State or federal statute
• Do not include common law privileges that are not codified (e.g., common law
settlement privilege applied by courts is not exempted from disclosure unless there is
another basis for exemption)
▪ (2) Records if disclosed would constitute unwarranted invasion of privacy
▪ (3) Records that are trade secrets of confidential commercial information (CCI)
• Parties that are submitting info to an agency may be submitting confidential
information
• Parties may identify information that is confidential and/or constitutes a trade secret.
Before releasing to the public, the agency must make a determination as to whether
the information is a trade secret/CCI. Party may appeal agency’s decision
• After 9/11, Critical Infrastructure Information and procedures was added
o A holder of this information can designated any info as Critical Infrastructure
Information before turning it over – such info must still fall within one of the
other statutory exemptions before preventing from disclosure
▪ (4) Records compiled for law enforcement purposes which, if disclosed, would interfere
with proceedings, reveal confidential sources
▪ (5) Records that, if disclosed, could endanger the life or safety of any person
▪ (6) Non-final agency deliberations
o State Legislative Records – disclosure is governed by Public Officers Law § 88
• Open Meetings Law – Public Officers Law § 7
o Meetings must be open to the public; advance notice must be given to the public (Public Officer
Law § 103) unless the party calls an Executive Session (Public Officer Law § 105)
o Reporting and record keeping requirement – Public Officers Law § 106
▪ Minutes must be taken at all meetings, including all matters voted on
▪ Minutes must be made available to the public under FOIL

Civil Practice and Procedure I

New York CLPR – Civil Practice Law and Rules
• Subject Matter Jurisdiction
o Highest Appellate Ct. is the NY Court of Appeals
▪ Hears appeals from the appellate division; can take appeals from other courts but it is very
rare
o Intermediate Appellate Ct. is the Appellate Division
▪ 4 Departments
• (1) NY and the Bronx
 o Additional – Appellate Term of the Sup. Ct. hears appeals from the NYC
Criminal and Civil Courts
• (2) Long Island, Westchester, Orange, Putnam
o Additional – Appellate Term of the Sup. Ct. hears appeals from [...]
• (3) Sullivan County, Clinton County, Franklin County, etc.
• (4) Western portion of state
▪ Principal trial court – State Supreme Court
• One branch in each of NY counties
• Original jurisdiction over all civil actions with the exception of actions brought
against the State which must be brought in the Court of Claims and actions that can
only be brought in federal court
• Exclusive jurisdiction over matrimonial and wrongful death claims
• Most counties have a commercial division
▪ Court of Claims
• Exclusive jdx w/r/t monetary claims brought against the State
▪ County courts
• Exist in every county except the five boroughs of NYC
• Primarily, they are courts that hear felony trial cases (criminal)
• Broad monetary jdx – up to $25K
o A claim for $20K could be brought in Supreme Court, but it will be kicked down
to the county court (or even lower)
▪ Surrogate court
• Jurisdiction over all matters regarding decedent’s estate, wills; guardianship; existing
trusts
o Technically, the State Supreme Court has jurisdiction over these as well, but you
bring them to Surrogate court
▪ Fmaily court
• Jurisdiction over child abuse proceedings, termination of parental rights, paternity
proceedings, etc.
o Again, this could be brought to Supreme Court, but if it is, it will be transferred
to the family court
▪ NYC has a civil court that hears actions up to $25K
▪ Nassau and Suffolk county have district courts that can hear civil actions up to $25K
▪ Throughout NY, city courts can hear matters up to $15K; and town/village courts limited
up to $3K
o Essentially, the Supreme Court has jdx over everything, but if the amount at issue is less than
$25K, you will go to a lower court
• Commencing an Action
o (1) File a summons and complaint
▪ File process with a County Clerk – in most counties, this can be accomplish electronically
o (2) File a summons that provides notice
• Service
o (1) Hand delivery to the defendant
o (2) Delivery to a suitable person + mailing
▪ Deliver to a person of suitable age and discretion at a suitable place (home or workplace)
▪ Also, mail a copy to the same location
o (3) Nail and mail
▪ Take a summons and nail it to the front door
▪ May only resort to this after having difficulty serving the defendant by other means (e.g.,
can’t do personal delivery)
 o (4) CPLR 3085: Allows a court, upon an ex parte motion made by plaintiff, to devise a method
of process to reach this defendant
▪ This is how NY courts have started endorsing serving process by email or by posting on
defendant’s FB page
• Service of NY Corporations
o (1) Serve an officer, director, or executive of the corporation or a person designated to receive
process (via personal delivery)
o (2) Service via SOS
• Service of a Foreign Corp.
o (1) Service by delivery to officer, director, or executive of the corporation or person designated
to receive process
o (2) If it is authorized to do business, may serve the SOS
▪ Foreign corporation unauthorized?

Personal Jurisdiction
• General jurisdiction – CPLR 301
• Specific jurisdiction – CPLR 302 (long-arm statute)
o (a)(1) Def
o (a)(2) Transacting business in NY
o (a)(3) Open question
o (a)(4) Person owns property in NY
• 302(b) – PJ in matrimonial actions
• Must be fair to subject defendant to jurisdiction in NY – if you satisfy NY, you likely satisfy due
process

Venue
• Which Supreme Court (or country court) do you bring the action in?
• Article 5 of the CPLR
• Under Art. 5 of CPLR, P can chose to bring action in court based on:
o (1) Residency
▪ P can bring action in any county in which any of the parties resides irrespective of where
cause of action arose
▪ Multiple Ds? Suit may be brought in any one of the counties where any one of the Ds lives
▪ D is a resident of multiple counties? Suit may be brought in any of the counties in which D
is a resident
▪ Nobody lives in NY? P can choose any country
o (2) Where the cause of action arose
• What if choice of venue is inconvenient? Court is permitted to move case to a different venue