Ballance v. Finkel

—Judgment, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered August 3, 2000, which denied petitioner’s application pursuant to CPLR article 78 to compel respondent Housing Authority to assign him the highest priority for a transfer from his current public housing apartment to another apartment in the same development, and dismissed the petition, unanimously affirmed, without costs.

At oral argument, petitioner’s counsel advised that insofar as petitioner sought assignment to a higher priority, the proceeding is now moot. Petitioner’s claim for money damages, apparently based on breach of the warranty of habitability, is not incidental to his claim that he should have been assigned a higher transfer priority, and therefore was properly dismissed (CPLR 7806; see, Matter of Gross v Perales, 72 NY2d 231, 235-237). Concur — Andrias, J. P., Ellerin, Rubin, Saxe and Friedman, JJ.