| Matter of Callwood v Cabrera |
| 2008 NY Slip Op 02471 [49 AD3d 394] |
| March 18, 2008 |
| Appellate Division, First Department |
| In the Matter of James H. Callwood, Appellant, v DavidCabrera, as Deputy Commissioner of the Division of Housing and Community Renewal,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Patrick J. Walsh of counsel), forrespondent.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered November27, 2006, which denied petitioner's motion to vacate a prior order denying his CPLR article 78petition seeking to compel respondent Division of Housing and Community Renewal to grant hisapplication for succession rights to his mother's Mitchell-Lama apartment, and lifted all stays inconnection with the eviction proceeding instituted against petitioner in Civil Court, unanimouslyaffirmed, without costs.
We reject petitioner's claim that the court lacked "jurisdiction" to dismiss his petition suasponte before respondent rendered a determination. Petitioner does not allege that he failed toproperly serve respondent, and indeed respondent appeared in the proceeding (see CPLR7804 [c]). Nevertheless, dismissal was appropriate because the landlord's voluntary agreement towithdraw its objection to petitioner's succession rights application rendered the petition moot andnonjusticiable, leaving the court without subject matter jurisdiction over the proceeding(see CPLR 3211 [a] [2]).
Also without merit is petitioner's contention that the order should be vacated because thecourt "breached its obligatory disciplinary duties" by failing to refer respondent Commissionerand the landlord's attorney for disciplinary action. Conclusory allegations are not sufficientlyindicative of "fraud, misrepresentation, or other misconduct" to warrant vacatur of the orderpursuant to CPLR 5015 (a) (3) (see Weinstock v Handler, 251 AD2d 184, 184 [1998],lv dismissed 92 NY2d 946 [1998]). In addition, the court advised petitioner that he couldsubmit a complaint directly to the Disciplinary Committee.
To the extent petitioner challenges respondent's November 28, 2005 denial of his successionrights application, that challenge is barred by the statute of limitations (see CPLR 217[1]; Matter of Village of Westbury v Department of Transp. of State of N.Y., 75 NY2d62, 72 [1989]). In any event, in light of petitioner's failure to demonstrate why his name did notappear on his mother's income affidavits for the two years preceding her departure toPhiladelphia in 1995 (see Matter of Shuet Ying Gee v NYS Div. of Hous. & CommunityRenewal, 276 AD2d 444 [2000]), respondent's denial of petitioner's succession applicationwas not arbitrary or capricious (see Matter of Pell v Board of Educ. of Union Free SchoolDist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222[1974]).[*2]
We have considered petitioner's remaining claim and findit without merit. Concur—Lippman, P.J., Gonzalez, Sweeny and Catterson, JJ.