Matter of Rodriguez v New York City Dept. of Hous. Preserv. & Dev.

Matter of Matter of Rodriguez v New York City Dept. of Hous. Preserv. & Dev. 2012 NY Slip Op 02613 Decided on April 10, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 10, 2012
Andrias J.P., Friedman, Acosta, Freedman, Richter, JJ. 7333-
116356/10 7333A

[*1]In re Jennifer Rodriguez, Petitioner,

v

New York City Department of Housing Preservation and Development, Respondent.



In re Jennifer Rodriguez, Petitioner-Appellant,

v

New York City Department of Housing Preservation and Development, Respondent-Respondent.




Richard Paul Stone, New York, for petitioner/appellant.
Michael A. Cardozo, Corporation Counsel, New York (Graham
Morrison of counsel), for respondent/respondent.

Determination of respondent New York City Department of Housing Preservation and Development, dated August 19, 2010, which, after a hearing, terminated petitioner's section 8 housing subsidy, 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 [Emily Jane Goodman, J.], entered April 15, 2011), dismissed, without costs. Appeal from the foregoing order, insofar as it transferred the proceeding to this Court, unanimously dismissed, without costs, as taken from an order that is not appealable as of right (CPLR 5701[b][1]).

Respondent's determination was supported by substantial evidence. The record demonstrates that petitioner violated the agency's policies requiring truthful and complete reporting of household income (Mormon v New York City Dept. Of Hous. Preserv. & Dev., 81 AD3d 528 [2011]). Petitioner was given ample opportunity to proffer a defense to, or explanation for, the charges, and she did, in fact, articulate several reasons why she did not accurately report her income, including a fear that if she reported her earnings, she would lose her section 8 subsidy. She conceded that her failure to accurately report her income was based on "bad judgment."

Her argument, raised for the first time in this proceeding, that she suffers from a mental [*2]illness that rendered her incapable of truthfully reporting her income, may not be considered (see Matter of Lee v Department of Hous. Preserv. & Dev. of City of N.Y., 48 AD3d 376 [2008]. In any event, the hearing representative had no duty to inquire as to petitioner's mental health since there was no indication that she was suffering from any mental incapacity (cf. Matter of Bush v Mulligan, 57 AD3d 772, 774-775 [2008]). Furthermore, petitioner
fails to provide any evidence that her alleged depression rendered her incapable of truthfully reporting her income.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 10, 2012

CLERK