IN RE: Application of R.C. 27TH AVENUE REALTY CORP. (2000)

Judgment, Supreme Court, New York County (Charles Ramos, J.), entered April 27, 1998, which denied and dismissed the petition brought pursuant to CPLR article 78 to annul respondent's determination, dated December 12, 1996, finding petitioner in default of contract, and order, same court and Justice, entered January 11, 2000, denying petitioner's motion to renew its application for CPLR article 78 relief, unanimously affirmed, without costs.

Even if petitioner's claim, essentially one for breach of contract, had been appropriately asserted in its application for relief pursuant to CPLR article 78 (see, Abiele Contr., Inc. v. New York City School Constr. Auth., 91 N.Y.2d 1, 7-8, 666 N.Y.S.2d 970, 689 N.E.2d 864), the petition remains subject to dismissal on the merits.   In view of petitioner's excessive delay in performing pursuant to the contract and its other non-compliance with the contract terms, respondent's default determination was not arbitrary and capricious or irrational.

We have considered petitioner's remaining arguments and find them unavailing.

MEMORANDUM DECISION.