Opinion
2013-03-19
In re Wanda COLEMAN, Petitioner–Appellant, v. John B. RHEA, etc., Respondent–Respondent.
South Brooklyn Legal Services, Inc., Brooklyn (Brent Meltzer of counsel), for appellant. Kelly D. MacNeal, New York (Andrew M. Lupin of counsel), for respondent.
South Brooklyn Legal Services, Inc., Brooklyn (Brent Meltzer of counsel), for appellant. Kelly D. MacNeal, New York (Andrew M. Lupin of counsel), for respondent.
ANDRIAS, J.P., FRIEDMAN, DeGRASSE, FREEDMAN, ABDUS–SALAAM, JJ.
Judgment, Supreme Court, New York County (Eileen A. Rakower, J.), entered February 8, 2012, which denied the petition seeking to annul respondent New York City Housing Authority's (NYCHA) determination terminating petitioner's tenancy, and dismissed the proceeding brought pursuant to CPLR Article 78, unanimously reversed, on the law, without costs, the judgment vacated, and 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.
The petition raises an issue of substantial evidence, and thus, the proceeding should have been transferred to this Court pursuant to CPLR 7804 (g). Accordingly, we treat the substantial evidence issue de novo and decide all issues as if the proceeding had been properly transferred ( see Matter of Filonuk v. Rhea, 84 A.D.3d 502, 502, 922 N.Y.S.2d 367 [1st Dept. 2011] ).
The finding of nondesirability is supported by substantial evidence, including that petitioner is chronically delinquent in payment of her rent, and that her adult son, an authorized member of her household, pleaded guilty to engaging in illegal drug activity on NYCHA premises ( see Matter of Rodriguez v. New York City Hous. Auth., 84 A.D.3d 630, 631, 923 N.Y.S.2d 502 [1st Dept. 2011];Matter of Zimmerman v. New York City Hous. Auth., 84 A.D.3d 526, 526, 921 N.Y.S.2d 856 [1st Dept. 2011] ).
Petitioner's claim that her right to due process was violated when the hearing officer permitted NYCHA to submit an updated ledger at a resumed hearing in December 2010, is meritless ( see Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 [1976] ). Petitioner was free to testify regarding the updated rent charges, the hearing officer kept the record open post-hearing to give petitioner a full opportunity to respond to the updated rent charge, and petitioner availed herself of this opportunity by submitting documentary evidence. Moreover, the hearing officer did not violate NYCHA's internal Termination of Tenancy Procedures.
Under the circumstances presented, the penalty of termination does not shock our conscience ( see Matter of Wooten v. Finkle, 285 A.D.2d 407, 408–409, 728 N.Y.S.2d 152 [1st Dept. 2001] ).
We have considered petitioner's remaining contentions and find them unavailing.