Summary
holding that petitioner's article 78 proceeding commenced more than four months after receiving the NYCHA determination is time-barred
Summary of this case from In the Matter of Kwan–fong Fung & Pak Fung v. N.Y. City Hous. Auth.Opinion
February 8, 2001.
Order and judgment (one paper), Supreme Court, New York County (Phyllis Gangel-Jacob, J.), entered January 3, 2000, which granted plaintiff's application to the extent of declaring plaintiff's stipulation to exclude her son from her public housing apartment permanently, as a result of a drug-related arrest, to be unenforceable as against public policy, enjoining the Housing Authority from terminating plaintiff's tenancy by reason of her son's visits to the apartment, vacating the Housing Authority's notice to vacate, denying the Housing Authority's cross-motion to dismiss the proceeding as barred by the four-months Statute of Limitations set forth in CPLR 217, and not permitting the Housing Authority to file an answer to the complaint, unanimously reversed, on the law, without costs, the application denied and the cross-motion to dismiss granted.
David G. Scudieri, for plaintiff-respondent.
Steven J. Rappaport, for defendant-appellant.
Before: Rosenberger, J.P., Tom, Wallach, Rubin, Saxe, JJ.
Under Solnick v. Whalen ( 49 N.Y.2d 224), the four-month Statute of Limitations set forth in CPLR 217 that is applicable to Article 78 proceedings governs this declaratory judgment action, because an Article 78 proceeding is the appropriate method of challenging a Housing Authority determination to terminate a tenancy (see, Sumpter v. New York City Housing Authority, 260 A.D.2d 176). This is the case even when the determination allegedly violates a public policy. Such a challenge falls under CPLR 7803(3), specifically, whether the determination was "affected by an error of law" (see Solnick, supra, at 230-231). A party may not change the nature of a proceeding, thereby lengthening the Statute of Limitations, simply by denominating it as something other than it is.
Contrary to plaintiff's argument, this case is not like Lutheran Church v. City of New York ( 35 N.Y.2d 121), where the Statute of Limitations issue was waived by defendants, nor Matter of Stroman v. Franco, ( 253 A.D.2d 398, lv denied 93 N.Y.2d 817), involving an Article 78 proceeding decided on the merits where there was no Statute of Limitations issue.
Plaintiff's action, commenced June 30, 1999, more than four months after receiving the notice of the Housing Authority determination, mailed February 2, 1998, is time barred and should have been dismissed. Even if we were to consider the notice to vacate, dated September 17, 1998, informing plaintiff of the Housing Authority's determination of status, to be that which was final and binding on plaintiff, the proceeding would still be time barred (see, Raykowski v. New York City Dept. of Transp., 259 A.D.2d 367; Biondo v. New York State Board of Parole, 60 N.Y.2d 832).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.