Opinion
14601 Index No. 451734/19 Case No. 2021–01726
11-09-2021
In the Matter of Marilyn BARRETT, Petitioner–Appellant, v. Gregory RUSS, as Chairperson of the New York City Housing Authority, et al., Respondents–Respondents.
Brooklyn Defender Services, Brooklyn (Lauren F.D. Price of counsel), for appellant. Lisa Bova–Hiatt, New York City Housing Authority. New York (Andrew M. Lupin of counsel), for respondents.
Brooklyn Defender Services, Brooklyn (Lauren F.D. Price of counsel), for appellant.
Lisa Bova–Hiatt, New York City Housing Authority. New York (Andrew M. Lupin of counsel), for respondents.
Renwick, J.P., Singh, Kennedy, Rodriguez, Pitt, JJ.
Judgment, Supreme Court, New York County (Carol R. Edmead, J.), entered on or about October 22, 2020, denying the petition to vacate the determination of respondent Housing Authority, dated May 9, 2018, which terminated petitioner's public housing tenancy, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
The proceeding is barred by the four-month statute of limitations governing article 78 proceedings (see CPLR 217 ; Matter of Best Payphones, Inc. v. Department of Info. Tech. & Telecom. of City of N.Y., 5 N.Y.3d 30, 34, 799 N.Y.S.2d 182, 832 N.E.2d 38 [2005] ). Respondent assigned petitioner a guardian ad litem (GAL) and petitioner cannot circumvent the limitations period by seeking to reopen the administrative hearing that resulted in the termination of her tenancy by alleging that her GAL was inadequate and ineffective. The proper forum to raise those arguments was through a timely commenced article 78 proceeding (see generally Matter of Carmona v. New York City Hous. Auth., 134 A.D.3d 404, 405, 20 N.Y.S.3d 69 [1st Dept. 2005], lv denied 26 N.Y.3d 1114, 26 N.Y.S.3d 512, 46 N.E.3d 1065 [2016] ; Matter of Russo v. New York City Hous. Auth., 128 A.D.3d 570, 571, 10 N.Y.S.3d 49 [1st Dept. 2015] ). Petitioner's request to reopen the administrative hearing did not reset or extend the statute of limitations (see Matter of Lubin v. Board of Educ. of City of N.Y., 60 N.Y.2d 974, 471 N.Y.S.2d 256, 459 N.E.2d 481 [1983], cert denied 469 U.S. 823, 105 S.Ct. 99, 83 L.Ed.2d 44 [1984] ; Matter of Todd v. New York City Hous. Auth., 262 A.D.2d 202, 202, 692 N.Y.S.2d 327 [1st Dept. 1999] ).
In view of the forgoing, we do not reach petitioner's remaining contentions (see Matter of Lewis v. New York City Hous. Auth., 187 A.D.3d 687, 131 N.Y.S.3d 545 [1st Dept. 2020] ).