Opinion
12928 Index No. 161541/18 Case No. 2019-04680
01-21-2021
In the Matter of Myrtle CALDWELL, Petitioner, v. Stanley BREZENOFF, as Interim Chair of the New York City Housing Authority, et al., Respondents.
Brooklyn Defender Services, Brooklyn (Alexandra Dougherty of counsel), for petitioner. Lisa Bova–Hiatt, New York (Hanh H. Le of counsel), for respondents.
Brooklyn Defender Services, Brooklyn (Alexandra Dougherty of counsel), for petitioner.
Lisa Bova–Hiatt, New York (Hanh H. Le of counsel), for respondents.
Renwick, J.P., Manzanet–Daniels, Kapnick, Kern, Kennedy, JJ.
Determination of respondents (collectively, NYCHA), dated August 10, 2018, which, after a hearing, sustained charges of nondesirability for possession and sale of a controlled substance, and terminated petitioner's tenancy, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Eileen A. Rakower, J.], entered on or about August 1, 2019) dismissed, without costs.
Initially, we note that NYCHA cannot rely on the charge alleging breach of rules and regulations, which was not addressed in the administrative determination being challenged (see Matter of Scherbyn v. Wayne–Finger Lakes Bd. of Coop. Educ. Servs., 77 N.Y.2d 753, 758, 570 N.Y.S.2d 474, 573 N.E.2d 562 [1991] ).
Nonetheless, the determination is supported by substantial evidence in the record, given witness testimony that petitioner was observed selling crack cocaine outside a public housing development, from a car with out-of-state tags that had been identified by complaints to police, and evidence that twist bags of crack cocaine were recovered from her possession on two occasions ( CPLR 7803[4] ; 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 179–182, 408 N.Y.S.2d 54, 379 N.E.2d 1183 [1978] ). Petitioner's "drug-related activity endangered her neighbors and the community" ( Matter of Dougall v. Rhea, 106 A.D.3d 434, 435, 963 N.Y.S.2d 873 [1st Dept. 2013] ; see Matter of Dubose v. New York City Hous. Auth., 113 A.D.3d 423, 423, 977 N.Y.S.2d 887 [1st Dept. 2014] ). Her plea to a lesser charge "does not affect [NYCHA]'s right to penalize the underlying conduct or render the evidence submitted at the hearing unsubstantial" ( Matter of Whitted v. New York City Hous. Auth., 110 A.D.3d 447, 448, 973 N.Y.S.2d 37 [1st Dept. 2013] ).
Contrary to petitioner's contention, the specification of charges provided "specific grounds for termination" ( 24 CFR 966.4 [l ][3][ii]), and listed the single category of nondesirability for which petitioner and NYCHA submitted post-hearing arguments. There was no due process violation, since "[s]he was provided a hearing, was represented by counsel, submitted mitigating evidence, and testified on h[er] own behalf" ( Matter of McCadney v. Olatoye, 170 A.D.3d 626, 627, 97 N.Y.S.3d 77 [1st Dept. 2019] ). Nor did the Hearing Officer violate lawful procedure by failing to comply with NYCHA's termination policy regarding the contents of the decision, as it discussed all relevant issues raised at the hearing, the specific findings as to whether the charges were proven, and the reasons therefor (see CPLR 7803[3] ). Indeed, the Hearing Officer considered and rejected petitioner's testimony, and we perceive no grounds to overturn the Hearing Officer's credibility determinations (see Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443–444, 522 N.Y.S.2d 478, 517 N.E.2d 193 [1987] ; Matter of Prado v. New York City Hous. Auth., 116 A.D.3d 593, 593, 983 N.Y.S.2d 789 [1st Dept. 2014] ).
Under the circumstances, we do not find the penalty shocking to one's sense of fairness (see Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 233, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974] ; Matter of Hill v. New York City Hous. Auth., 111 A.D.3d 462, 463, 974 N.Y.S.2d 429 [1st Dept. 2013] ; Matter of Whitted, 110 A.D.3d at 448, 973 N.Y.S.2d 37 ).
We have considered petitioner's remaining contentions and find them unavailing.