Ny Practice (Adr & A78 Proceedings)

Front 1

ADR (threshold questions)

Back 1

5 threshold issues that Cts will first decide
- Did the parties agree to arbitrate?
--- Agreement must be in writing
--- Agreement must be clear, explicit & unequivocal
- Is the dispute w/in the scope of the arbitration clause?
--- Very broad = Arbitration can decide virtually anything
- Is the arbitration clause valid?
--- Doctrine of severability: Validity of arb clause is determined separately from the validity of the overall K in which the arbitration clause appears
--- The only way to invalidate a clause: Fraud, duress/coercion, or a matter contrary to public policy
- Is there an express condition precedent to arbitration, and has it been complied w/?
- SoL

Front 2

Judicial review of ADR awards

Back 2

- Corruption, fraud, misconduct in arb proceeding
- Bias of arbitrator who was chosen to be neutral
- Arbitrator exceeded its power (but usually arbitrators have virtually unlimited power (unless K otherwise))

Front 3

A78

Back 3

Special proceeding for judicial review of action/inaction by gov't/quasi-gov't officers/bodies
- Mandamus to compel
- Prohibition
- Certiorari
- Mandamus to review

Front 4

Mandamus to compel

Back 4

Purpose: To compel the performance of an act req’d by law – an act as to which no discretion is involved

Front 5

Prohibition

Back 5

Purpose: To stop a judicial officer from exercising power that exceeds the officer’s lawful jur’n (excess must be “gross” in nature)
- E.g. of “gross excess”: ∆ gets “not guilty” verdict but judge allows 2d trial for same crime; judge ordering opposing parties to depose witnesses neither party wishes to depose

Front 6

Certiorari

Back 6

Purpose: Challenge the results of a “trial-type” hearing conducted by an administrative agency
- Trial-type: Hearing in which testimony was taken under oath w/ right of CE
--- E.g.: State education dept’s revocation of Dr’s license to practice medicine
- Persons w/ a vested property/quasi-property right are entitled to a trial-type hearing prior to divestiture; certiorari is the form of judicial review of agency
Standard: Ct must uphold agency decision if it was supported by substantial evidence

Front 7

Mandamus to review

Back 7

Purpose: Review any type of admin action not covered by categories 1-3; Most often, mandamus to review is used to challenge agency determination made w/o a trial-type hearing
- E.g.: Zoning variance denied by local board
Standard: Ct must uphold agency determination unless it was arbitrary & capricious

Front 8

A78 procedure

Back 8

- A78 proceedings are to be brought in NY Supreme Ct
- SoL: 4 mos from when agency action is final & binding
- Relief available:
--- Declaratory/injunctive
--- Damages are recoverable if they are incidental to the main relief being sought