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In re Clemons

Supreme Court of New York, First Department

October 15, 2013

In re Nicole Clemons, Petitioner-Appellant,
v.
New York City Housing Authority, Respondent-Respondent

Nicole Clemons, appellant pro se.

Kelly D. MacNeal, New York City Housing Authority, New York (Jonathan Savella of counsel), for respondent.

Mazzarelli, J.P., Andrias, Freedman, Gische, JJ.

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 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 A.D.3d 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 A.D.2d 473 [1st Dept 2002], lv denied 99 N.Y.2d 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 A.D.2d 176 [1st Dept 1999]).


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