IN RE: Application of Darlene HEMPHILL

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Supreme Court, Appellate Division, First Department, New York.

IN RE: Application of Darlene HEMPHILL, Petitioner-Respondent, For a Judgment, etc., v. The NEW YORK CITY HOUSING AUTHORITY, Respondent-Appellant.

Decided: May 30, 2000

WILLIAMS, J.P., WALLACH, LERNER, ANDRIAS and SAXE, JJ. Byron S. Menegakis, for Respondent-Appellant.

Judgment, Supreme Court, Bronx County (Joseph Giamboi, J.), entered December 24, 1998, which granted the petition and annulled, as arbitrary and capricious, respondent's determination that petitioner's public housing tenancy should be terminated for nondesirability, and denied respondent's cross motion to dismiss the petition as untimely, unanimously reversed, on the law, without costs, the cross motion granted and the petition dismissed.

 The record shows that respondent served notice on petitioner at every step of these proceedings, and that, at the very latest, she received notice of the final administrative determination on January 28, 1998.   Consequently, the commencement of this article 78 proceeding on or about June 28, 1998 was untimely.   No explanation was afforded for the untimeliness.   Moreover, the Supreme Court also erred in not permitting respondent to serve an answer upon denial of its motion to dismiss, in accordance with the mandate of CPLR 7804[f].   In any event, the cross motion to dismiss the petition should have been granted on the merits, since the petitioner's contention, that the undesirability charges were without merit, was unsupported by the record.