Clemons v. New York City Housing Authority

Order and judgment (one paper), Supreme Court, New York County (Doris Ling-Cohan, J.), entered July 10, 2012, which denied the petition, and granted respondent’s (NYCHA) cross motion to dismiss this CPLR article 78 proceeding, unanimously affirmed, without costs. On October 6, 2011, petitioner commenced this proceeding seeking to annul NYCHA’s September 17, 2010 denial of her application to vacate her default in failing to appear at a hearing on charges against her tenancy. The proceeding is time-barred (see CPLR 217 [1]) and this Court cannot extend the statute of limitations (see CPLR 201). Petitioner’s excuse for the untimeliness of the petition is improperly raised for the first time on appeal (see Liddle, Robinson & Shoemaker v Shoemaker, 12 AD3d 282, 283 [1st Dept 2004]). In any event, her claimed ignorance of the requirement to commence an article 78 proceeding within four months of NYCHA’s final determination does not excuse her failure to comply with the statute of limitations (see generally Harris v City of New York, 297 AD2d 473 [1st Dept 2002], lv denied 99 NY2d 503 [2002]). Respondent was not under any duty to advise petitioner of the applicable statute of limitations (see Matter of Sumpter v New York City Hous. Auth., 260 AD2d 176 [1st Dept 1999]). Concur — Mazzarelli, J.P., Andrias, Freedman and Gische, JJ.