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In re Horne

Supreme Court of New York, First Department

January 30, 2014

In re Laura Horne, Petitioner-Respondent,
v.
New York City Housing Authority, Respondent-Appellant.

Kelly D. MacNeal, New York (Andrew M. Lupin of counsel), for appellant.

Laura Horne, respondent pro se.

Mazzarelli, J.P., Sweeny, DeGrasse, Freedman, Gische, JJ.

Judgment, Supreme Court, New York County (Alice Schlesinger, J.), entered August 27, 2012, granting the petition to annul the determination of respondent New York City Housing Authority (NYCHA), dated February 9, 2011, which terminated petitioner's tenancy based upon a finding that she violated a permanent exclusion stipulation, to the extent of remanding the matter to NYCHA for the imposition of a lesser penalty, unanimously vacated, on the law, without costs, 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 brought pursuant to CPLR article 78, dismissed.

Since [t]he issue of substantial evidence, although not specifically stated, was clearly raised in the instant petition" (Matter of Verdell v Lincoln Amsterdam House, Inc., 27 A.D.3d 388, 390 [1st Dept 2006]), we will "treat the substantial evidence issues de novo and decide all issues" (Matter of Jimenez v Popolizio, 180 A.D.2d 590, 591 [1st Dept 1992]).

The finding by respondent that petitioner violated the stipulation requiring her to permanently exclude her grandson 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, 180-182 [1978]). An investigator for NYCHA found the grandson, scantily clad, hiding in a closet in the apartment, and petitioner admitted that she had permitted him to enter the apartment to visit her.

The penalty of lease termination does not shock our sense of fairness, notwithstanding petitioner's advanced age and numerous health problems. The record shows that petitioner allowed her grandson into the apartment after he had been excluded on the basis of drug-related activity at a time that he was residing in petitioner's apartment without authorization (see Matter of Cruz v New York City Hous. Auth., 106 A.D.3d 631 [1st Dept 2013]). The Hearing Officer reasonably found that since petitioner had received a total of five probationary periods, and NYCHA had previously declined to terminate the tenancy when petitioner violated a permanent exclusion order pertaining to a different person, further probation would be an ineffective sanction (see Matter of Wooten v Finkle, 285 A.D.2d 407, 409 [1st Dept 2001]).


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