Cheek v. Hernandez-Pinero

198 A.D.2d 106, 603 N.Y.S.2d 831

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 16, 1993
• Status: Published

Opinion

—Determination of the respondent New York City Housing Authority dated January 29, 1992, which terminated petitioner’s tenancy on thé ground of non-desirability, unanimously annulled on the law, the facts and in the exercise of discretion, only to the extent of vacating the penalty of termination, the proceeding, brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [William Davis, J.], entered October 1, 1992), remanded to respondent for imposition of a new penalty, and the determination otherwise confirmed, without costs or disbursements.

Substantial evidence supports respondent’s finding that petitioner knew about the drug trafficking and other non-desirable acts taking place in her apartment and did nothing to stop it before the charges were brought. On the other hand, it is undisputed that petitioner did remove the offenders by the time of the hearing. Since petitioner was not found to have participated in the non-desirable acts, and there being no evidence of any other non-desirable acts before or since, we find the penalty of dismissal to be disproportionate to the offense and remand for imposition of a lesser penalty (cf., Matter of James v New York City Hous. Auth., 186 AD2d 498; NY City Housing Authority Termination of Tenancy Procedures ¶ 13). Concur — Wallach, J. P., Ross, Asch and Rubin, JJ.