Matter of Baldwin v Hernandez

Matter of Baldwin v Hernandez 2009 NY Slip Op 09702 [68 AD3d 663] December 29, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

In the Matter of Anne Baldwin, Petitioner,
v
Tino Hernandez, as Chairman and Member of the New York City Housing Authority, Respondent.

—[*1] Bushwick Housing & Legal Assistance, Brooklyn (Stephen S. Burzio of counsel), for petitioner.

Sonya M. Kaloyanides, New York (Corina L. Leske of counsel), for respondent.

Determination by the Housing Authority, dated November 28, 2007, which permanently excluded petitioner's son from her public housing apartment, unanimously confirmed, the petition denied, and this proceeding, transferred to this Court under CPLR 7804 (g) by order of Supreme Court, New York County (Marylin G. Diamond, J.), entered August 7, 2008, dismissed, without costs.

The conditioning of petitioner's continued tenancy on exclusion of her son for nondesirability is supported by substantial evidence, and was not arbitrary and capricious (see Matter of Canales v Hernandez, 13 AD3d 263 [2004]). Where this petitioner's son had pleaded guilty to the assault of a female, threatened two Housing Authority employees, and left harassing messages on the home telephone of his former supervisor, the penalty of continued tenancy conditioned on his exclusion was appropriate and was not shocking to the conscience (see Matter of Featherstone v Franco, 95 NY2d 550 [2000]).

The hearing officer's grant of additional time for the Housing Authority to submit a written closing statement caused no prejudice to petitioner. Furthermore, the issuance of a decision within one week after receipt of the parties' submissions was not contrary to the [*2]Housing Authority's termination of tenancy procedures, which require a reasonably timely decision. Petitioner was not deprived of due process. Concur—Mazzarelli, J.P., Catterson, Moskowitz, Richter and Manzanet-Daniels, JJ.