Matter of [Jackson] v Hernandez

Matter of Higgs v Hernandez 2007 NY Slip Op 00571 [36 AD3d 558] January 30, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 14, 2007

In the Matter of Mechele Higgs (Jackson), Petitioner,
v
Tino Hernandez, as Chair of the New York City Housing Authority, et al., Respondents.

—[*1] Christopher D. Lamb, The Legal Aid Society, Staten Island (Sarah T. Gillman of counsel), for petitioner. Ricardo Elias Morales, New York (Andrew Koppel of counsel), for respondents.

Determination of respondents, dated August 17, 2005, terminating petitioner's section 8 housing subsidy on the ground that she committed fraud by willfully failing to report her husband's occupancy and income on her 2003 income affidavit, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Shirley Werner Kornreich, J.], entered December 9, 2005) dismissed, without costs.

We reject petitioner's argument that the Hearing Officer employed a substantial evidence standard of proof rather than the preponderance of the evidence standard concededly applicable at the administrative hearing. The Hearing Officer's decision concludes that "[t]here exists in this record substantial credible evidence [that petitioner and her husband resided together in a subsidized apartment]. His presence was willfully not disclosed." We are satisfied that the phrase "substantial credible evidence" was not a statement of the burden of proof but a comment on the quantity and quality of the evidence weighing in respondents' favor. We note that petitioner does not raise a substantial evidence issue. Concur—Mazzarelli, J.P., Friedman, Williams, McGuire and Malone, JJ.