Under Solnick v. Whalen ( 49 N.Y.2d 224), the four-month Statute of Limitations set forth in CPLR 217 that is applicable to Article 78 proceedings governs this declaratory judgment action, because an Article 78 proceeding is the appropriate method of challenging a Housing Authority determination to terminate a tenancy (see, Sumpter v. New York City Housing Authority, 260 A.D.2d 176). This is the case even when the determination allegedly violates a public policy. Such a challenge falls under CPLR 7803(3), specifically, whether the determination was "affected by an error of law" (see Solnick, supra, at 230-231). A party may not change the nature of a proceeding, thereby lengthening the Statute of Limitations, simply by denominating it as something other than it is.
Contrary to plaintiff's argument, this case is not like Lutheran Church v. City of New York ( 35 N.Y.2d 121), where the Statute of Limitations issue was waived by defendants, nor Matter of Stroman v. Franco, ( 253 A.D.2d 398, lv denied 93 N.Y.2d 817), involving an Article 78 proceeding decided on the merits where there was no Statute of Limitations issue.
Plaintiff's action, commenced June 30, 1999, more than four months after receiving the notice of the Housing Authority determination, mailed February 2, 1998, is time barred and should have been dismissed. Even if we were to consider the notice to vacate, dated September 17, 1998, informing plaintiff of the Housing Authority's determination of status, to be that which was final and binding on plaintiff, the proceeding would still be time barred (see, Raykowski v. New York City Dept. of Transp., 259 A.D.2d 367; Biondo v. New York State Board of Parole, 60 N.Y.2d 832).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.