Matter of Horne v New York City Hous. Auth.

Matter of Horne v New York City Hous. Auth. 2014 NY Slip Op 00584 Decided on January 30, 2014 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 January 30, 2014
Mazzarelli, J.P., Sweeny, DeGrasse, Freedman, Gische, JJ.
11285 401427/11

[*1]In re Laura Horne, Petitioner-Respondent,

v

New York City Housing Authority, Respondent-Appellant.




Kelly D. MacNeal, New York (Andrew M. Lupin of counsel),
for appellant.
Laura Horne, respondent pro se.

Judgment, Supreme Court, New York County (Alice Schlesinger, J.), entered August 27, 2012, granting the petition to annul the determination of respondent New York City Housing Authority (NYCHA), dated February 9, 2011, which terminated petitioner's tenancy based upon a finding that she violated a permanent exclusion stipulation, to the extent of remanding the matter to NYCHA for the imposition of a lesser penalty, unanimously vacated, on the law, without costs, the petition treated as one transferred to this Court for de novo review, and, upon such review, the challenged determination confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78, dismissed.

Since [t]he issue of substantial evidence, although not specifically stated, was clearly raised in the instant petition" (Matter of Verdell v Lincoln Amsterdam House, Inc., 27 AD3d 388, 390 [1st Dept 2006]), we will "treat the substantial evidence issues de novo and decide all issues" (Matter of Jimenez v Popolizio, 180 AD2d 590, 591 [1st Dept 1992]).

The finding by respondent that petitioner violated the stipulation requiring her to permanently exclude her grandson from the subject apartment is supported by substantial evidence (see generally 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180-182 [1978]). An investigator for NYCHA found the grandson, scantily clad, hiding in a closet in the apartment, and petitioner admitted that she had permitted him to enter the apartment to visit her.

The penalty of lease termination does not shock our sense of fairness, notwithstanding petitioner's advanced age and numerous health problems. The record shows that petitioner allowed her grandson into the apartment after he had been excluded on the basis of drug-related activity at a time that he was residing in petitioner's apartment without authorization (see Matter of Cruz v New York City Hous. Auth., 106 AD3d 631 [1st Dept 2013]). The Hearing Officer reasonably found that since petitioner had received a total of five probationary periods, and [*2]NYCHA had previously declined to terminate the tenancy when petitioner violated a permanent exclusion order pertaining to a different person, further probation would be an ineffective sanction (see Matter of Wooten v Finkle, 285 AD2d 407, 409 [1st Dept 2001]).

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

ENTERED: JANUARY 30, 2014

CLERK