Spand v. Franco

242 A.D.2d 210, 663 N.Y.S.2d 813, 1997 N.Y. App. Div. LEXIS 8239

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 7, 1997
• Status: Published

Opinion

—Determination of respondent New York City Housing Authority, dated June 7, 1995, which terminated petitioner’s public housing tenancy on the ground of nondesirability, 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 [Alice Schlesinger, J.], entered April 12, 1996) is otherwise disposed of by confirming the remainder of the determination, without costs.

A review of the record as a whole shows that the Housing Authority’s determination was supported by substantial evidence. However, it also shows the penalty imposed was so disproportionate “ ‘in the light of all the circumstances, as to be shocking to one’s sense of fairness’ ” (Matter of Pell v Board of Educ., 34 NY2d 222, 233). Certainly the behavior petitioner engaged in was serious and was appropriately condemned by respondent, but in the unique circumstances of this case, the eviction of petitioner, a resident for over four years and the mother of three small children, is a disproportionate sanction.

Petitioner was involved in one isolated incident, has no other violations and has not presented any other problems to the Housing Authority. There is no indication that she poses any present risk to other tenants or to respondent’s property. Accordingly, we remand this matter to respondent for consideration of a lesser penalty (see, Matter of Vargas v Franco, 238 AD2d 274). Concur—Sullivan, J. P., Ellerin, Tom, Mazzarelli and Andrias, JJ.