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In re Cruz

Supreme Court of New York, First Department

May 28, 2013

In re Paula Cruz, Petitioner-Respondent,
v.
New York City Housing Authority, Respondent-Appellant.

Kelly D. MacNeal, New York (Byron S. Menegakis of counsel), for appellant.

Law Offices of Annette G. Hasapidis, South Salem (Annette G. Hasapidis of counsel), for respondent.

Mazzarelli, J.P., Andrias, DeGrasse, Freedman, Manzanet-Daniels, JJ.

Judgment, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered July 26, 2012, in this CPLR article 78 proceeding brought by petitioner tenant to annul respondent's determination to terminate her tenancy, granting the application to the extent of remanding the matter to respondent for imposition of a lesser penalty, unanimously vacated, the petition treated as one transferred to this Court for de novo review, and, upon such review, the challenged determination confirmed, the petition denied, and the proceeding dismissed, without costs.

The petition raises an issue of substantial evidence and therefore, the proceeding should have been transferred to this Court pursuant to CPLR 7804(g). Accordingly, we will "treat the substantial evidence issues de novo and decide all issues as if the proceeding had been properly transferred" (Matter of Jimenez v Popolizio, 180 A.D.2d 590, 591 [1st Dept 1992]).

The determination terminating petitioner's tenancy for violation of the permanent exclusion stipulation in which she agreed to permanently exclude her son from the subject apartment, is supported by substantial evidence (see generally 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 N.Y.2d 176, 180 [1978]). The record shows that petitioner's son, who was barred from the apartment for drug-related activity, maintained a room in the apartment, visited regularly, and was arrested in the apartment while in possession of crack cocaine.

Although the penalty imposed will likely have significant adverse consequences for petitioner, she failed to take any action to prevent her son from using the premises (see Matter of Perez v Rhea, 20 N.Y.3d 399 [2013]). Moreover, the other residents of the development should not be placed at risk by the criminal activities of petitioner's son (see e.g. Matter of Gibbs v New York City Hous. Auth., 82 A.D.3d 412 [1st Dept 2011]).


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