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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 101010
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Possibly filing article 78 against the NYC DOB, NYC Bronx

Customer Question

Possibly filing article 78 against the NYC DOB
JA: Because laws vary from state to state, could you tell me what state is this in?
Customer: NYC Bronx Department of buildings
JA: Have you talked to a lawyer yet?
Customer: No only the the office of the Public Advocate who was also trying to assist me in a resolution
JA: Anything else you think the lawyer should know?
Customer: I mean theres a lot more but I was looking for a consultation to start and see where the liability lies
Submitted: 6 months ago.
Category: Legal
Expert:  Ely replied 6 months ago.

Hello and welcome to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

An Article 78 proceeding in NY is essentially the state's version of Writ of Mandamus. It asks the Court to review an administrative decision by a government agency. So what can I answer for you in regards ***** *****?

This is not an answer, but an information request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.

Customer: replied 6 months ago.
thats fine. Im not sure and purely in the information gathering stage.
Expert:  Ely replied 6 months ago.

Sure. So what can I answer for you in regards ***** *****?

Customer: replied 6 months ago.
About the reasoning for the potential article 78. I purchased a home back in November of last year and have been attempting to complete paper work for a certificate of occupancy. I was told to hire an architect to supersede the original architect and I did. The architect requested a waiver on concrete cylinders and subsurface because the job was about 11 years old. My plan examiner referred me to his superior who said he would provide the waiver if the architect changed the wording on a form. I returned with the changed form and he didn't provide the waiver but adds another item I must now answer. I have the form where the superior wrote the words for the architect. Later I learn from the dob bis site that the items I was requesting to be waived are all pre permit items and the job has already been permitted. Yet they are obstructing my CofO unless I basically dig up my basement.
Expert:  Ely replied 6 months ago.

Okay. Thank you for that explanation. I am still not sure what you are asking...? For example:

1) How do I file a 78?

2) is this a 78 case?

3) Do I need an attorney?

Etc.

Customer: replied 6 months ago.
I guess its do I need an attorney? Or is there any merit in my request?
Expert:  Ely replied 6 months ago.

Thank you for your clarification.

An Article 78 is filed for one of the following:

1. whether the body or officer failed to perform a duty enjoined upon it by law; or

2. whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction; or

3. whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed; or

4. whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence.

So once someone in your situation exhausts their administrative appeals for this, then YES, an Article 78 may be filed.

Counsel is not mandatory, but is highly recommended. This is because 78 is a lawsuit. This means drafting the complaint, filing it, serving it, and going through legal procedure, as well as possibly trial. This is not easy to do, even for attorneys.

I hope this helps and clarifies. Please use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how experts get credit for our time. Rating my answer the bottom two faces/stars (or failing to submit the rating) does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith with a positive rating.

Customer: replied 6 months ago.
Yeah I would definitely go the attorney route. The article 78 was actually suggested by both my councilman and the office of the public advocate. I just wanted legal eyes on what I believe is an error on behalf of the department of buildings and I am hoping they will correct themselves as they are supposedly investigating the transgression.
Expert:  Ely replied 6 months ago.

Makes sense. It sounds like this can be an Article 78 suit. Just understand that it can take a few months for this to simply get to court.

Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.

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