New York Supreme and/or Appellate Courts Appellate Division, First Department
January 31, 2012
IN RE MARIA M. PENA, PETITIONER-APPELLANT,
NEW YORK CITY HOUSING AUTHORITY, RESPONDENT-RESPONDENT.
New York Supreme and/or Appellate Courts 2012_00650.htm
Matter of Matter of Pena v New York City Hous. Auth.
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 on January 31, 2012
Tom, J.P., Sweeny, DeGrasse, Abdus-Salaam, Manzanet-Daniels, JJ.
Order, Supreme Court, New York County (Joan B. Lobis, J.), entered December 6, 2010, which, upon renewal and reargument, adhered to its order and judgment (one paper), entered September 3, 2010, denying the petition to annul respondent New York City Housing Authority's determination, dated December 7, 2009, to deny petitioner's application to vacate a default that resulted in the termination of her tenancy, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs. Order, same court and Justice, entered June 20, 2011, which, to the extent appealed from as limited by the briefs, denied petitioner's motion to vacate the 2010 orders, unanimously affirmed, without costs.
Respondent's determination that petitioner failed to apply to open her default within a reasonable time, give a reasonable excuse for missing her hearing, and set forth a meritorious defense to the charges against her, has a rational basis (see Matter of Daniels v Popolizio, 171 AD2d 596, 597 ). Contrary to petitioner's contention, in order to vacate her default, she was required to demonstrate a meritorious defense and a reasonable excuse, which she failed to do (see id.; Matter of Barnhill v New York City Hous. Auth., 280 AD2d 339 ).
The court had no basis for treating petitioner's motion to vacate the court's 2010 orders pursuant to CPLR 5015 as having been made under CPLR 317; the latter statute applies to judicial proceedings, not proceedings before an agency.
Petitioner's remaining contentions are either unpreserved or without merit.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 31, 2012
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