Saunders v. Rhea

603 The article 78 petition was untimely under CPLR 217 (1), which provides a four-month limitation period for review of administrative determinations. Petitioner’s later correspondence with NYCHA, which was denominated a motion to vacate the settlement stipulation into which petitioner had entered with NYCHA, did not extend or toll her time to initiate an article 78 proceeding (see Matter of M & D Contrs. v New York City Dept. of Health, 233 AD2d 230, 231 [1996]. The dissent’s reliance on Matter of Yarbough v Franco (95 NY2d 342 [2000]) is misplaced. Yarbough dealt with a motion to vacate a default judgment — one which was not even served on movant for several months after it was entered. Her commencement of an article 78 proceeding to challenge the denial of her motion to vacate was clearly timely. That is completely the opposite of our matter where petitioner was presumably aware of the stipulation when it was signed, thereby commencing the four month limitation period. Unlike in Yarbough, there is no procedure to appeal the refusal to vacate a stipulation, hence no basis to toll or extend the statute of limitations. Furthermore, since the proceeding is time-barred, petitioner’s argument that her right to due process was violated cannot be addressed (see Matter of M & D Contrs. at 231). Concur — Saxe, J.P, Sweeny and Moskowitz, JJ. Manzanet-Daniels, J, dissents in a memorandum as follows: