Matter of Dubose v New York City Hous. Auth.

Matter of Dubose v New York City Hous. Auth. 2014 NY Slip Op 00166 Decided on January 9, 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 9, 2014
Gonzalez, P.J., Tom, Renwick, Manzanet-Daniels, Feinman, JJ.
11461 402798/11

[*1]In re Allen Dubose, Petitioner-Appellant,

v

New York City Housing Authority, Respondent-Respondent.




Steven Banks, The Legal Aid Society, New York (Douglass J.
Seidman of counsel), for appellant.
Kelly D. MacNeal, New York (Byron S. Menegakis of counsel),
for respondent.

Judgment, Supreme Court, New York County (Arlene P. Bluth, J.), entered October 16, 2012, denying the petition seeking to vacate respondent's determination, which terminated petitioner's tenancy, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Supreme Court properly determined that transfer of the proceeding pursuant to CPLR 7804(g) was not required since the issues raised in the petition concerned the penalty imposed rather than the charges of nondesirability (see e.g. Matter of Kerney v Hernandez, 60 AD3d 544 [1st Dept 2009]). Even were we to conduct a de novo review, petitioner's guilty plea to the criminal charge involving illegal drug activity in his apartment
established the nondesirability charges (see Grayes v DiStasio, 166 AD2d 261, 262-263 [1st Dept 1990]).

Despite the existence of mitigating factors, the penalty of termination does not shock one's sense of fairness, particularly in view of the danger to others posed by petitioner's illegal drug activity (see Matter of Chandler v Rhea, 103 AD3d 427 [1st Dept 2013]). The Hearing Officer was entitled to reject the testimony of petitioner's expert as to his low risk of recidivism, [*2]even in the absence of a contrary expert opinion (see Felt v Olson, 51 NY2d 977, 979 [1980]).

We have considered petitioner's remaining arguments and find them unavailing.

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

ENTERED: JANUARY 9, 2014

CLERK