

Matter of Kamara v East Riv. Landing (2015 NY Slip Op 07564)





Matter of Kamara v East Riv. Landing


2015 NY Slip Op 07564


Decided on October 15, 2015


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 on October 15, 2015

Friedman, J.P., Sweeny, Saxe, Moskowitz, Gische, JJ.


15889 154329/13

[*1] In re Tapsiru Kamara, Petitioner-Respondent,
vEast River Landing, Respondent, Department of Housing Preservation, and Development of the City of New York, et al., Respondents-Appellants.


Zachary W. Carter, Corporation Counsel, New York (Janet L. Zaleon of counsel), for Department of Housing Preservation and Development of the City of New York, appellant.
Borah, Goldstein, Altschuler Nahins & Goidel, P.C., New York (Paul N. Gruber of counsel), for 1199 Housing Corp., appellant.

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered February 21, 2014, which granted petitioner's motion to vacate her default in a prior article 78 proceeding and consolidated that article 78 proceeding with the instant article 78 proceeding seeking the same relief, and denied respondents-appellants' cross motions to dismiss the petition, unanimously reversed, on the law, without costs, the cross motions granted, the petition denied, and the proceeding dismissed. The Clerk is directed to enter judgment accordingly.
The court improperly determined a motion to vacate an order of a justice of coordinate jurisdiction rendered in an earlier article 78 proceeding brought by the then pro se petitioner. That motion should have been addressed to the justice in the prior proceeding because he was the assigned judge (see  CPLR 2221[a][1], [b]; 22 NYCRR § 202.3[b]; Clearwater Realty Co. v Hernandez,  256 AD2d 100, 102 [1st Dept 1998]), and no exception was cited pursuant to 22 NYCRR § 202.3(c). Since the court lacked the authority to determine petitioner's motion to vacate her default in the prior article 78 proceeding, consolidation of the two proceedings was improper.
Moreover, it was undisputed that the second article 78 proceeding was untimely since it was filed more than four months after petitioner admitted she became aware of HPD's determination denying her succession rights to the apartment, and therefore, HPD's and the landlord's cross motions to dismiss the petition as barred by the statute of limitations should have been granted. In any event, HPD's determination was rational since the documents presented to [*2]the hearing officer did not demonstrate when the tenant vacated the apartment and how long petitioner cohabited with him (see Howard v Wyman,  28 NY2d 434, 438 [1971]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 15, 2015
CLERK


