692 N.Y.S.2d 327 | N.Y. App. Div. | 1999
—Order, Supreme Court, New York County (Bruce Allen, J.), entered January 20, 1998, which, in a proceeding brought by petitioner tenant pursuant to CPLR article 78 to annul respondent Housing Authority’s termination of her tenancy, granted respondent’s motion to dismiss the petition as time-barred, unanimously affirmed, without costs.
Proceedings pursuant to CPLR article 78 must be commenced within four months after the determination the petitioner seeks to review becomes final (CPLR 217 [1]). The Statute of Limitations is not extended by an application to the agency to reconsider its determination (Matter of Johnson v Christian, 114 AD2d 321), unless the agency’s rules mandate reconsideration (see, Matter of Feller v Wagner, 7 AD2d 126), which is not the case here. Petitioner’s allegations of mental incapacity serving to toll the Statute of Limitations are unavailing. The tolling of the statute is to be interpreted narrowly and is intended only for those persons who are unable to protect their legal rights by reason of incapacity (McCarthy v Volkswagen of Am., 55 NY2d 543). This is not the case here where petitioner retained counsel three months before the statute ran.
We have considered petitioner’s other arguments and find them to be unavailing. Concur — Sullivan, J. P., Mazzarelli, Lerner, Rubin and Saxe, JJ.