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Baldwin v. Hernandez

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 29, 2009

IN RE ANNE BALDWIN, PETITIONER,
v.
TINO HERNANDEZ, AS CHAIRMAN AND MEMBER OF THE NEW YORK CITY HOUSING AUTHORITY, RESPONDENT.

Determination by the Housing Authority, dated November 28, 2007, which permanently excluded petitioner's son from her public housing apartment, unanimously confirmed, the petition denied, and this proceeding, transferred to this Court under CPLR 7804(g) by order of Supreme Court, New York County (Marylin G. Diamond, J.), entered August 7, 2008, dismissed, without costs.

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.

Mazzarelli, J.P., Catterson, Moskowitz, Richter, Manzanet-Daniels, JJ.

400571/08

The conditioning of petitioner's continued tenancy on exclusion of her son for non-desirability is supported by substantial evidence, and was not arbitrary and capricious (see Matter of Canales v Hernandez, 13 AD3d 263 [2004]). Where this petitioner's son had pleaded guilty to the assault of a female, threatened two Housing Authority employees, and left harassing messages on the home telephone of his former supervisor, the penalty of continued tenancy conditioned on his exclusion was appropriate and was not shocking to the conscience (see Matter of Featherstone v Franco, 95 NY2d 550 [2000]).

The hearing officer's grant of additional time for the Housing Authority to submit a written closing statement caused no prejudice to petitioner. Furthermore, the issuance of a decision within one week after receipt of the parties' submissions was not contrary to the Housing Authority's Termination of Tenancy Procedures, which require a reasonably timely decision. Petitioner was not deprived of due process.

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

20091229

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