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In re Dubose

Supreme Court of New York, First Department

January 9, 2014

In re Allen Dubose, Petitioner-Appellant,
v.
New York City Housing Authority, Respondent-Respondent.

Steven Banks, The Legal Aid Society, New York (Douglass J. Seidman of counsel), for appellant.

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

Gonzalez, P.J., Tom, Renwick, Manzanet-Daniels, Feinman, JJ.

Judgment, Supreme Court, New York County (Arlene P. Bluth, J.), entered October 16, 2012, denying the petition seeking to vacate respondent's determination, which terminated petitioner's tenancy, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Supreme Court properly determined that transfer of the proceeding pursuant to CPLR 7804(g) was not required since the issues raised in the petition concerned the penalty imposed rather than the charges of nondesirability (see e.g. Matter of Kerney v Hernandez, 60 A.D.3d 544 [1st Dept 2009]). Even were we to conduct a de novo review, petitioner's guilty plea to the criminal charge involving illegal drug activity in his apartment established the nondesirability charges (see Grayes v DiStasio, 166 A.D.2d 261, 262-263 [1st Dept 1990]).

Despite the existence of mitigating factors, the penalty of termination does not shock one's sense of fairness, particularly in view of the danger to others posed by petitioner's illegal drug activity (see Matter of Chandler v Rhea, 103 A.D.3d 427 [1st Dept 2013]). The Hearing Officer was entitled to reject the testimony of petitioner's expert as to his low risk of recidivism, even in the absence of a contrary expert opinion (see Felt v Olson, 51 N.Y.2d 977, 979 [1980]).

We have considered petitioner's remaining arguments and find them unavailing.


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