Opinion
2011-11-29
In the Matter of Pamela RICHARDSON, respondent, v. NEW YORK CITY HOUSING AUTHORITY, appellant.
Sonya M. Kaloyanides, New York, N.Y. (Nancy M. Harnett and Maria Termini of counsel), for appellant.
In a proceeding pursuant to CPLR article 78 to review a determination of the New York City Housing Authority which denied the petitioner succession rights to a public housing apartment, as a remaining family member, the New York City Housing Authority appeals, by permission, from an order of the Supreme Court, Kings County (Baynes, J.), dated November 18, 2010, which denied its motion to dismiss the petition as time-barred pursuant to CPLR 217.
ORDERED that the order is reversed, on the law, with costs, and the motion to dismiss the petition as time-barred pursuant to CPLR 217 is granted.
Pursuant to CPLR 217(1), “a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner.” In the case at bar, the determination at issue became final and binding upon the petitioner on July 30, 2008. Of course, “fundamental fairness requires that the aggrieved party be notified of the administrative determination before the statutory period in which to seek review commences” ( Guirdanella v. New York State Div. of Hous. & Community Renewal, 165 A.D.2d 667, 668, 564 N.Y.S.2d 13; see Matter of Edmead v. McGuire, 67 N.Y.2d 714, 499 N.Y.S.2d 934, 490 N.E.2d 853; Matter of Biondo v. New York State Bd. of Parole, 60 N.Y.2d 832, 470 N.Y.S.2d 130, 458 N.E.2d 371). Here the appellant, the New York City Housing Authority, proved that it mailed the subject determination to the petitioner on August 11, 2008. Significantly, the petitioner has made no denial of receipt of the determination. Thus, her time within which to commence a CPLR article 78 proceeding to review the determination expired four months after August 11, 2008, that is, on December 11, 2008 ( see CPLR 217; General Construction Law § 30). Accordingly, the commencement of this proceeding in July 2010 was untimely and the motion to dismiss the petition as time-barred should have been granted ( see Matter of Harmond v. New York State Off. of Children & Family Servs., 71 A.D.3d 768, 896 N.Y.S.2d 168; Matter of McCrory v. Village of Scarsdale, 67 A.D.3d 684, 886 N.Y.S.2d 907).