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In Matter of Yarbough v. Franco, 95 N.Y.2d 342, 717 N.Y.S.2d 79, 740 N.E.2d 224 [2000], the Court held that a tenant's application to vacate a default judgment extended the four-month limitations period.
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Decided October 26, 2000.
Henry Schoenfeld, for appellants.
Mimi Rosenberg, for respondent.
New York City Public Housing Resident Alliance, amicus curiae.
At issue on this appeal is whether the four-month Statute of Limitations for challenging the denial of a tenant's request to vacate a New York City Housing Authority default determination accrues upon entry of the default or upon denial of the tenant's request to vacate it. We conclude that the limitations period begins to run from receipt of the denial of the request to vacate the default.
Petitioner Lola Yarbough is a tenant in a low-income housing project owned by respondent New York City Housing Authority. In May 1996, the Authority sought to terminate petitioner's tenancy, charging her with violating its rules by allowing unauthorized family members to reside with her. After several adjournments, a hearing was scheduled for November 29, 1996. When petitioner failed to appear on that date, the Hearing Officer entered a default determination and sustained the charges. Although the default was entered on December 3, 1996, the Authority did not serve notice of it until on or about April 1, 1997.
Petitioner received the notice on April 7, 1997 and the next day filed a request to vacate the default pursuant to paragraph 8 of the Authority's Termination of Tenancy Procedures, maintaining that she never received notice of the November 29, 1996 adjournment. Months later, by decision dated June 24, 1997 and sent to petitioner by mail, the Authority denied her request as untimely.
Paragraph 8 of those procedures provides:
If the tenant fails to answer or appear at the hearing the Hearing Officer shall note the default upon the record and shall make his written decision on the record before him. Upon application of the tenant made within a reasonable time after his default in appearance, the Hearing Officer may, for good cause shown, open such default and set a new hearing date.
On October 31, 1997, petitioner commenced this article 78 proceeding seeking review of both the December 3, 1996 default determination and the June 24, 1997 denial of her application to vacate the default. In dismissing her petition as time-barred, Supreme Court concluded that petitioner was required to commence the proceeding within four months after the default determination terminating her tenancy, and that petitioner's application to vacate the default did not extend the limitations period. The Appellate Division modified by annulling the Authority's June 24, 1997 denial of petitioner's application to vacate the default and remitting for a hearing on the merits of that application. The court held, however, that petitioner was not entitled to article 78 review of the December 3, 1996 determination as it was entered upon her default. It further concluded that petitioner's application to vacate the default was made within a reasonable time, and that the four-month limitations period for article 78 review ran from petitioner's receipt of the denial of her request to vacate the default. This Court granted the Authority leave to appeal. We now affirm.
An article 78 proceeding must be commenced within four months after the administrative determination to be reviewed becomes "final and binding upon the petitioner" (CPLR 217; New York State Ass'n of Counties v. Axelrod, 78 N.Y.2d 158, 165). An administrative determination becomes "final and binding" when the petitioner seeking review has been aggrieved by it (Matter of Carter v. State of New York, Executive Dept., Div. of Parole, ___ N.Y.2d ___ [decided October 17, 2000]; Matter of Edmead v. McGuire, 67 N.Y.2d 714, 716; Matter of Lubin v. Board of Educ. of the City of New York, 60 N.Y.2d 974, 976, rearg denied, 61 N.Y.2d 905, cert denied 469 U.S. 823). However, the fact that a determination is final for the purpose of its present execution does not mean it is final for judicial review purposes (cf., Matter of New York Cent. R.R. Co. v. Public Service Comm., 238 N.Y. 132, 135-136). An administrative determination is not final for judicial review purposes if it rests upon an empty record. This is such a case.
Although petitioner's default here effectively terminated her tenancy, any challenge to that default is unreviewable absent an application to the Authority to vacate it. A request to vacate a default affords the defaulting party an opportunity to develop a factual record setting forth the reasons for the nonappearance and any meritorious defenses that would justify re-opening the default (see, Gray v. B.R. Trucking Co., 59 N.Y.2d 649, 650, rearg dismissed 59 N.Y.2d 966). To authorize a petitioner to raise these issues for the first time in an article 78 proceeding, as the Authority urges, would deprive the administrative agency of the opportunity "to prepare a record reflective of its 'expertise and judgment'" (Watergate II Apartments v. Buffalo Sewer Auth., 46 N.Y.2d 52, 57 [quoting Matter of Fisher (Levine), 36 N.Y.2d 146, 150]; see also, Young Men's Christian Assn. v. Rochester Pure Waters Dist., 37 N.Y.2d 371, 375). Moreover, it would render judicial review meaningless. Judicial review of administrative determinations is confined to the "facts and record adduced before the agency" (Fanelli v. New York City Conciliation and Appeals Bd., 90 A.D.2d 756, 757, affd for reasons below 58 N.Y.2d 952). Without an application to vacate, and the Authority's subsequent review, a court would have no record upon which to weigh the defaulting party's excuse and potential defense (see, Matter of Geraldine Rose W., 196 A.D.2d 313, 317 [Rosenblatt, J.]). Because no meaningful judicial review lies from the default itself, we hold that the Authority's denial of petitioner's application to vacate the default constitutes the final, binding determination from which the four-month Statute of Limitations is measured (see, Interboro Management Co. v. State Div. of Human Rights, 139 A.D.2d 697, 698; cf., CPLR 5511, 5015).
We reject the Authority's argument that a motion to vacate a default is nothing more than a motion to reconsider, which does not toll the Statute of Limitations (see, Matter of Simmons v. Popolizio, 160 A.D.2d 368,affd 78 N.Y.2d 917). A motion to reconsider generally seeks the same relief, and advances factual and legal issues that were previously litigated at the administrative level. For that reason, it cannot be used to extend the Statute of Limitations (see, Matter of De Milio v. Borghard, 55 N.Y.2d 216, 220, 222; Davis v. Kingsbury, 30 A.D.2d 944, 945, affd for reasons stated 27 N.Y.2d 567).
In contrast, a motion to vacate a default presents factual questions not previously passed upon by the administrative agency. By seeking to vacate the default, petitioner was simply availing herself of the Authority's own invitation under its procedures to present new facts supporting her reasons for the default and to proffer a meritorious defense (see, Davis v. Kingsbury, supra, 30 A.D.2d, at 945 [noting that a second application may toll statute of limitations "where a different factual presentation is invited by the authority in question"]; cf.,Matter of Koukla, Inc. v. New York State Liquor Auth., 37 A.D.2d 955, 956). Because petitioner's application to vacate the default created a "fresh situation," it cannot be considered a motion to reconsider a prior determination (Matter of Koukla, Inc. v. New York State Liquor Auth.,supra, 37 A.D.2d, at 956).
Our decision presents no risk of undermining the strong policy favoring efficiency and repose (see, Solnick v. Whalen, 49 N.Y.2d 224, 232). Paragraph 8 of the Authority's procedures permits a tenant to apply "within a reasonable time after his default in appearance" to open such default. This "reasonable time" limitation guards against unnecessary and dilatory applications. Here, petitioner sought to vacate the default only a day after receiving notice. Having inexplicably waited almost four months to serve its default determination, the Authority cannot now complain that petitioner's timely request to vacate threatens the policy favoring swift prosecution of administrative determinations. Indeed, this Court has recently recognized the right of a defaulting rent-stabilized tenant to challenge an administrative determination relating to luxury decontrol of an apartment upon a showing that the tenant moved to vacate the default within a reasonable time (see, Matter of Dworman v. New York State Div. of Hous. and Community Renewal, 94 N.Y.2d 359). Under these circumstances, petitioner's application to vacate the default presents no risk of circumventing the four-month Statute of Limitations, and the instant article 78 proceeding was not untimely (cf., De Milio v. Borghard, supra, 55 N.Y.2d, at 222).
Accordingly, the order of the Appellate Division should be affirmed, with costs.
Order affirmed, with costs. Opinion by Judge Ciparick. Chief Judge Kaye and Judges Smith, Levine, Wesley and Rosenblatt concur.