IN RE: Ormond GILBERT (2008)

Judgment (denominated an order), Supreme Court, Bronx County (Alan J. Saks, J.), entered January 12, 2006, which granted the petition to annul respondent's determination denying petitioner succession rights to his deceased mother's apartment and denied the municipal respondents' cross motion to dismiss the petition, unanimously reversed, on the law, without costs, the petition denied and the cross motion granted.

 The Supreme Court erred in invoking the “relation back” doctrine to join Rosedale Gardens, Inc. as a necessary party respondent after the expiration of the applicable limitations period since petitioner's failure to name Rosedale Gardens in his original complaint was due to a mistake of law and not of fact (see Matter of 27th St. Block Assn. v. Dormitory Auth. of State of N.Y., 302 A.D.2d 155, 165, 752 N.Y.S.2d 277 [2002];  see also Buran v. Coupal, 87 N.Y.2d 173, 181, 638 N.Y.S.2d 405, 661 N.E.2d 978 [1995] ).

 While we would otherwise remand for consideration whether this proceeding should continue in the absence of Rosedale Gardens, pursuant to CPLR 1001(b) (see Matter of Red Hook/Gowanus Chamber of Commerce v. New York City Bd. of Stds. & Appeals, 5 N.Y.3d 452, 460, 805 N.Y.S.2d 525, 839 N.E.2d 878 [2005] ), in view of petitioner's failure to demonstrate why his name did not appear on his mother's income affidavit for the year preceding her death, respondents' denial of his succession application cannot be deemed arbitrary and capricious (see Matter of Callwood v. Cabrera, 49 A.D.3d 394, 854 N.Y.S.2d 42 [2008];  Matter of Greichel v. New York State Div. of Hous. & Community Renewal, 39 A.D.3d 421, 832 N.Y.S.2d 807 [2007] ).