The respondent, by its attorneys, responded to Mr. Clark's foregoing claims by requesting a dismissal of his application on numerous grounds. The respondent argues that dismissal is appropriate because, [1] an Article 78 proceeding is barred pursuant to CPLR §§ 217(1), 7802, 7803, 7804 & 3211(a)(5), since Mr. Clark commenced this Article 78 proceeding eight months subsequent to HPD's decision; i.e., beyond the four-month statute of limitations, [2] Mr. Lippa's decision was not arbitrary, capricious, or an abuse of discretion as required by CPLR § 7804(f), [*2][3] the petition is barred by res judicata, collateral estoppel, wavier and the election of remedies doctrines under CPLR § 3211(a)(5), because Mr. Clark accepted and conceded to the March 1, 2007 Stipulation that he vacate the apartment and pay the respondent the outstanding rent, [4] Mr. Clark failed to name HPD as a necessary and indispensable party pursuant to CPLR §§ 1001,1003, 321(a)(10), [5] the court lacks subject matter jurisdiction pursuant to CPLR § 3211(a)(2) because the petition became moot and non-justiciable after Mr. Clark voluntarily agreed to vacate the apartment, and [6] the petition can't be adjudicated because it is pending in another action pursuant to CPLR § 3211(a)(4) (Index No. 4610/2004).
Furthermore, the respondent emphasizes that Mr. Clark's failure to make any assertion of withholding rent due to noise, and the corresponding breach of his warranty of habitability in his original repair demands exposes his present assertion as a "last-ditch attempt to salvage his former tenancy."