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Gist v. Mulligan

September 22, 2009

IN THE MATTER OF THYAIS GIST, PETITIONER,
v.
GERARD MULLIGAN, ETC., ET AL., RESPONDENTS.



Proceeding pursuant to CPLR article 78 to review a determination of the Commissioner of the Westchester Department of Planning dated January 4, 2006, which, after a hearing, confirmed the termination of the petitioner's participation in the Section 8 Rental Housing Choice Voucher Program (see 42 USC § 1437f[b][1]).

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.

WILLIAM F. MASTRO, J.P., JOSEPH COVELLO, RANDALL T. ENG, JOHN M. LEVENTHAL and CHERYL E. CHAMBERS, JJ.

(Index No. 06-7683)

DECISION & JUDGMENT

ADJUDGED that the petition is granted, on the law, without costs or disbursements, to the extent that so much of the determination as confirmed the penalty of termination is vacated; the petition is otherwise denied, the determination is otherwise confirmed on the merits, and the matter is remitted to the respondents for the imposition of a lesser penalty.

The petitioner appeals from a determination terminating her participation in Section 8 Rental Housing Choice Voucher Program (see 42 USC § 1437f[b][1]). The petitioner maintains that the determination was not supported by substantial evidence and that the penalty imposed was shocking to one's sense of fairness.

Substantial evidence supports the determination finding that the petitioner violated certain rules specified in 24 CFR 982.551, which articulate several procedures governing recertification of eligibility of tenants for participation in rental housing subsidized pursuant to section 8 of the United States Housing Act of 1937 (42 USC § 1437f, hereinafter Section 8) (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180; Matter of Gonzalez v Mulligan, 45 AD3d 841, 842; Matter of Langton v Rutkoske, 252 AD2d 504). The petitioner was properly found to have failed to complete her annual form for recertification of eligibility and to appear for her recertification appointment with the Westchester County Department of Planning (hereinafter the Department), and failed to notify the Department that she vacated her apartment.

However, under the circumstances of this case, the penalty imposed was so disproportionate to the offenses committed as to be shocking to one's sense of fairness (see Matter of Sicardo v Smith, 49 AD3d 761, 762; Matter of Riggins v Lannert, 18 AD3d 560, 562; Matter of Brown v Lannert, 272 AD2d 323; see generally Matter of Pell v Board of Educ. Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, 233) and, thus, an abuse of discretion as a matter of law (see CPLR 7803[3]; Matter of Kreisler v New York City Tr. Auth., 2 NY3d 775, 776).

At the time the petitioner was to appear for her recertification appointment, she was incarcerated for conduct that resulted in a misdemeanor conviction, and did not have the funds necessary to post bail. Her young children had been living with her in the subject apartment but were apparently removed from the apartment during the time when the petitioner was incarcerated. The petitioner's mother called the Department and requested an adjournment of the first recertification appointment. The petitioner's mother provided two possible dates on which to reschedule the recertification appointment, under the belief that the petitioner would be released from custody by those dates. The petitioner, however, remained incarcerated on the two rescheduled dates, had no money to post bail, had insufficient funds in her commissary account to buy stamps, and had no visitors. Consequently, the petitioner failed to appear and notify the Department of her continued incarceration.

Although one of the reasons stated in the hearing officer's determination for the petitioner's termination from the Section 8 Housing Choice Voucher Program was her failure to notify the Department that she vacated her apartment, another provision in the determination cites the fact that the petitioner was evicted. Nonetheless, it is undisputed that the petitioner was incarcerated at the time when her young children either vacated the apartment or were themselves evicted. Thus the lack of prior notification of the vacatur of the apartment was not a willful violation of the relevant regulations (cf. Matter of Featherstone v Franco, 95 NY2d 550). Nor, as the dissent implies, did the hearing officer find that the petitioner's violation was willful.

Accordingly, we remit the matter to the respondents for the imposition of a lesser penalty.

MASTRO, J.P., LEVENTHAL and CHAMBERS, JJ., concur.

COVELLO, J., concurs in part and dissents in part, and votes to deny the petition and dismiss the proceeding, with the following ...


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