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New York Consolidated Laws

N.Y. Public Service Law § 128 (2026)

Judicial review

✓ current as of May 2026
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§ 128. Judicial review.  1. Any party aggrieved by any order issued on
an application for a certificate may apply for a rehearing under section
twenty-two within thirty days after issuance of the order and thereafter
obtain judicial review of such order in a proceeding as provided in this
section. Such proceeding shall be brought in the appellate division of
the supreme court of the state in the judicial department embracing the
county wherein the proposed facility is located. If such facility is
located in more than one judicial department, such proceeding may be
brought in any one but only one of such departments.  Such proceeding
shall be initiated by the filing of a petition in such court within
thirty days after the issuance of a final order by the commission upon
the application for rehearing, together with proof of service of a
demand on the commission to file with said court a copy of a written
transcript of the record of the proceeding before it and a copy of its
order and opinion, if any. The commission's copy of said transcript,
order and opinion, if any, shall be available at all reasonable times to
all parties for examination without cost.  Upon receipt of such petition
and demand, the commission shall forthwith deliver to the court a copy
of the record and a copy of its order and opinion, if any. Thereupon the
court shall have jurisdiction of the proceeding and shall have power to
grant such relief as it deems just and proper, and to make and enter an
order enforcing, modifying, and enforcing as so modified, remanding for
further specific evidence or findings or setting aside in whole or in
part such order. The appeal shall be heard on the record without
requirement of reproduction. No objection that has not been urged by the
party in his application for rehearing before the commission shall be
considered by the court, unless the failure or neglect to urge such
objection shall be excused because of extraordinary circumstances. The
findings of fact on which such order is based shall be conclusive if
supported by substantial evidence on the record considered as a whole or
by information set forth in the opinion. The jurisdiction of the
appellate division of the supreme court shall be exclusive and its
judgment and order shall be final, subject to review by the court of
appeals in the same manner and form and with the same effect as provided
for appeals in a special proceeding. All such proceedings shall be heard
and determined by the appellate division of the supreme court and by the
court of appeals as expeditiously as possible and with lawful precedence
over other matters.
  2. The grounds for and the scope of review of the court shall be
limited to whether the order of the commission and opinion, if any, is
  (a) in conformity with the constitution and the laws of the state and
the United States.
  (b) supported by substantial evidence in the record or by information
properly considered in the opinion.
  (c) within the commission's statutory jurisdiction or authority.
  (d) made in accordance with procedures set forth in this article or
established by rule or regulation of the commission.
  (e) arbitrary, capricious or an abuse of discretion.
  3. Except as herein provided article seventy-eight of the civil
practice law and rules shall apply to appeals taken hereunder.
Notes of Decisions
Cited in 18 cases (2 in the last 5 years), 1986–2026 · leading case: Powerline Coalition, Inc. v. New York State Pub. Serv. Comm'n, 244 A.D.2d 98 (N.Y. App. Div. 3d Dep't 1998).
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Powerline Coalition, Inc. v. New York State Pub. Serv. Comm'n, 244 A.D.2d 98 (N.Y. App. Div. 3d Dep't 1998). · cites it 4× “After the Commission denied their request, the instant proceeding was commenced pursuant to Public Service Law § 128 (a) for an order annulling the denial of the petition for a rehearing.”
Inc. Vill. of East Williston v. Pub. Serv. Comm'n, 153 A.D.2d 943 (N.Y. App. Div. 2d Dep't 1989). · cites it 5× “The petitioner did not seek a rehearing following the certification order (Public Service Law § 128 [1]), but instead, noting that the Commission itself may at any time reopen a proceeding or grant a rehearing (16 NYCRR 2.”
Matter of Citizens for the Preserv. of Wainscott, Inc. v. New York State Pub. Serv. Commn., 2023 NY Slip Op 02510 (N.Y. App. Div. 2d Dep't 2023). · cites it 3× “CPW commenced this proceeding pursuant to Public Service Law § 128 and CPLR article 78 to review the determination dated August 12, 2021, on the ground, inter alia, that adoption of the Beach Lane route over any one of CPW's proposed alternate routes was arbitrary and capricious…”
Delaware Cnty. v. Pub. Serv. Comm'n, 120 A.D.2d 256 (N.Y. App. Div. 3d Dep't 1986). · cites it 7× “DCCOPRA, Coombe and Biase each commenced a proceeding in this court on June 20, 1986, June 26, 1986 and July 3, *259 1986, respectively, pursuant to Public Service Law § 128 seeking to challenge the PSC orders dated January 30, 1985 (the Certification Order), May 6, 1985 (the…”
In re the Acquisition of Real Prop. by Cent. Hudson Gas & Elec. Corp., 274 A.D.2d 860 (N.Y. App. Div. 3d Dep't 2000). “Respondents and other landowners thereafter brought a CPLR article 78 proceeding challenging the PSC’s certificate under Public Service Law § 128 which was dismissed as untimely (see, Matter of Powerline Coalition v New York State Pub.”
Entergy Nuclear Power Mktg., LLC v. New York State Pub. Serv. Comm'n, 122 A.D.3d 1024 (N.Y. App. Div. 3d Dep't 2014). · cites it 7× “Petitioners then commenced this proceeding in this Court pursuant to Public Service Law § 128 to annul the Commission’s determination as well as the granting of the applicants’ EC&PN.”
Entergy Nuclear Power Mktg., LLC v. New York State Pub. Serv. Comm'n, 122 A.D.3d 1024 (N.Y. App. Div. 3d Dep't 2014). · cites it 7× “Petitioners then commenced this proceeding in this Court pursuant to Public Service Law § 128 to annul the Commission’s determination as well as the granting of the applicants’ EC&PN.”
CNG Transmission Corp. v. New York State Pub. Serv. Comm'n, 185 A.D.2d 671 (N.Y. App. Div. 4th Dep't 1992). “In its petition CNG seeks to annul the PSC’s determination on the grounds that it was not supported by substantial evidence, was not made in accordance with statutory procedures, and was arbitrary and capricious or an abuse of discretion (see, Public Service Law § 128). From our…”
MatterofEntergyNuclearPowerMarketing,LLCvNewYorkStatePublicServiceCommission, No. 517776 (N.Y. App. Div. 3d Dep't Nov. 13, 2014). · cites it 6× “Petitioners then commenced this proceeding in this Court pursuant to Public Service Law § 128 to annul the Commission's determination as well as the granting of the applicants' EC&PN.”
Vill. of Tuckahoe v. Pub. Serv. Comm'n, 150 A.D.2d 466 (N.Y. App. Div. 2d Dep't 1989). · cites it 2× “California Ridge Associates and Avon Association did not petition for reconsideration of the order dated May 18, 1988, and thus have no standing to seek judicial review of the order dated August 9, 1988, since they are not aggrieved within the meaning of Public Service Law § 128…”
Ingham v. Pub. Serv. Comm'n, 116 A.D.2d 718 (N.Y. App. Div. 2d Dep't 1986). “Public Service Law § 128 (1) provides that "[a]ny party aggrieved by any order issued on an application for a certificate [of environmental compatibility and public need] may *719 apply for a rehearing under section twenty-two within thirty days after issuance of the order”…”
Power Auth. v. Potocnik, 125 A.D.2d 788 (N.Y. App. Div. 3d Dep't 1986). “Defendants had ample opportunity to raise their objections in the administrative process and to pursue judicial review pursuant to Public Service Law § 128. * The Public Service Commission’s determinations cannot be collaterally attacked in these actions (see, Atwell v Power…”
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