Saunders v. Rhea

Appellate Division of the Supreme Court of New York

Saunders v. Rhea

92 A.D.3d 602, 939 N.Y.2d 374

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 28, 2012

StatusPublished

Cited by3 cases

This text of 92 A.D.3d 602 (Saunders v. Rhea) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Saunders v. Rhea, 92 A.D.3d 602, 939 N.Y.2d 374 (N.Y. Ct. App. 2012).

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Opinions

[603]*603The 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:

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[603]*603The 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:

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92 A.D.3d 602, 939 N.Y.2d 374, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saunders-v-rhea-nyappdiv-2012.

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