Opinion
2013-09-24
In re ENDRICH REALTY CORP., Petitioner–Appellant v. John B. RHEA, etc., Respondent–Respondent.
Novick, Edelstein, Lubell, Reisman, Wasserman & Leventhal, P.C., Yonkers (Lawrence T. Schiro of counsel), for appellant. Kelly D. MacNeal, New York (Megan E. Kimball and Nancy M. Hamett of counsel), for respondent.
Novick, Edelstein, Lubell, Reisman, Wasserman & Leventhal, P.C., Yonkers (Lawrence T. Schiro of counsel), for appellant. Kelly D. MacNeal, New York (Megan E. Kimball and Nancy M. Hamett of counsel), for respondent.
FRIEDMAN, J.P., FREEDMAN, RICHTER, FEINMAN, GISCHE, JJ.
Judgment, Supreme Court, New York County (Manuel J. Mendez, J.), entered September 20, 2012, denying the petition seeking to compel respondent New York City Housing Authority to reinstate Section 8 housing subsidy payments for July and August 2011 and granting respondent's cross motion to dismiss the proceeding brought pursuant to CPLR article 78 as time-barred, unanimously affirmed on the law, without costs.
We need not decide what the earliest accrual date would be in this case. There can be no doubt that the limitations period began to run as of November 2011, if not sooner, when respondent failed to pay all past due amounts ( see Best Payphones, Inc. v. Dept. of Info. Tech. & Telecom., 5 N.Y.3d 30, 799 N.Y.S.2d 182, 832 N.E.2d 38 [2005] ). Although the total payment did not specify which months' payments were being withheld, it should have been clear to petitioner that it had not received all the funds owed. Because petitioner did not commence the proceeding within four months of November 2011, the proceeding must be dismissed as time-barred.