Matter of Barrett v. Russ

Matter of Barrett v Russ (2021 NY Slip Op 06071)

Matter of Barrett v Russ

2021 NY Slip Op 06071

Decided on November 09, 2021

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: November 09, 2021
Before: Renwick, J.P., Singh, Kennedy, Rodriguez, Pitt, JJ.

Index No. 451734/19 Appeal No. 14601 Case No. 2021-01726

[*1]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.

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 NY3d 30, 34 [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 AD3d 404, 405 [1st Dept 2005], lv denied 26 NY3d 1114 [2016]; Matter of Russo v New York City Hous. Auth., 128 AD3d 570, 571 [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 NY2d 974 [1983], cert denied 469 US 823 [1984]; Matter of Todd v New York City Hous. Auth., 262 AD2d 202, 202 [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 AD3d 686 [1st Dept 2020]).THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: November 9, 2021