Johnson v. New York City Housing Authority

Appellate Division of the Supreme Court of New York

Johnson v. New York City Housing Authority

266 A.D.2d 102, 698 N.Y.S.2d 474, 1999 N.Y. App. Div. LEXIS 11654

Appellate Division of the Supreme Court of the State of New York·Decided November 18, 1999·Published·Cited by 2 cases

Opinion

—Determination of respondent Housing Authority, dated January 7, 1998, which terminated petitioner’s public housing tenancy on the ground that she violated a stipulation of settlement in a prior nondesirability proceeding that conditioned her eligibility on the continued absence of an emancipated son from the subject apartment, unanimously modified, on the facts, to vacate the penalty of termination, the matter remanded to respondent for imposition of a lesser penalty, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Phyllis Gangel-Jacob, J.], entered on or about September 25, 1998) is otherwise disposed of by confirming the remainder of the determination, without costs.

Respondent’s finding that petitioner violated the stipulation excluding her eldest son from visiting the subject apartment is supported by substantial evidence. Petitioner acknowledged that her excluded son was in her apartment at the time of respondent’s inspection and her explanations for such presence raised issues of credibility that were decided against petitioner and are not subject to judicial review (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 180-182; Matter of Serrano v Popolizio, 183 AD2d 430). However, the penalty of termination shocks our conscience, and we accordingly remand for a lesser penalty, in view of petitioner’s otherwise unblemished record in public housing, her large household of six children including an adopted son and daughter and, three foster children, her reliance on public assistance and her disabled son’s Social Security for support, and the fact that the violation arose from the isolated act of an emancipated son who does not reside with her (cf., Matter of Williams v [103]*103Franco, 262 AD2d 45, citing Matter of Spand v Franco, 242 AD2d 210, lv denied 92 NY2d 802). Concur — Sullivan, J. P., Nardelli, Mazzarelli, Lerner and Buckley, JJ.

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—Determination of respondent Housing Authority, dated January 7, 1998, which terminated petitioner’s public housing tenancy on the ground that she violated a stipulation of settlement in a prior nondesirability proceeding that conditioned her eligibility on the continued absence of an emancipated son from the subject apartment, unanimously modified, on the facts, to vacate the penalty of termination, the matter remanded to respondent for imposition of a lesser penalty, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Phyllis Gangel-Jacob, J.], entered on or about September 25, 1998) is otherwise disposed of by confirming the remainder of the determination, without costs.

Respondent’s finding that petitioner violated the stipulation excluding her eldest son from visiting the subject apartment is supported by substantial evidence. Petitioner acknowledged that her excluded son was in her apartment at the time of respondent’s inspection and her explanations for such presence raised issues of credibility that were decided against petitioner and are not subject to judicial review (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 180-182; Matter of Serrano v Popolizio, 183 AD2d 430). However, the penalty of termination shocks our conscience, and we accordingly remand for a lesser penalty, in view of petitioner’s otherwise unblemished record in public housing, her large household of six children including an adopted son and daughter and, three foster children, her reliance on public assistance and her disabled son’s Social Security for support, and the fact that the violation arose from the isolated act of an emancipated son who does not reside with her (cf., Matter of Williams v [103]*103Franco, 262 AD2d 45, citing Matter of Spand v Franco, 242 AD2d 210, lv denied 92 NY2d 802). Concur — Sullivan, J. P., Nardelli, Mazzarelli, Lerner and Buckley, JJ.

Johnson v. New York City Housing Authority, 266 A.D.2d 102, 698 N.Y.S.2d 474, 1999 N.Y. App. Div. LEXIS 11654 (N.Y. Ct. App. 1999).

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