We further note that petitioner's 27-year tenancy in the subject building is otherwise unblemished and that she has taken steps to pay the rent that she would have been required to pay had she not misrepresented her household income. Under the circumstances, the penalty of petitioner's eviction from public housing, where she has lived all her life, "shocks our sense of fairness" ( Matter of Turner v Franco, 237 AD2d 225, 225). Concur.
The adoption of a broad interpretation of RPAPL 753 (4) in these circumstances would permit the Civil Court to grant a cure period and to reinstate a tenancy where the agency's determination that the tenant is no longer eligible for continued occupancy has been upheld by the Supreme Court and/or the Appellate Division. The fact that the instant tenant did not avail herself of the existing avenue of review (e.g., Matter of Williams v Franco, 262 AD2d 45; Matter of Powell v Franco, 257 AD2d 509; Matter of Spand v Franco, 242 AD2d 210; Matter of Turner v Franco, 237 AD2d 225) does not warrant the judicial expansion of RPAPL 753 (4). PATTERSON, J., concurs and votes to affirm in the following memorandum: In my view, the facts of this case are clearly distinguishable from those in New York City Hous. Auth. v Williams (179 Misc 2d 822).
The adoption of a broad interpretation of RPAPL 753 in these circumstances would permit the Civil Court to grant a cure period and to reinstate a tenancy where the agency's determination that the tenant is no longer eligible for continued occupancy has been upheld by the Supreme Court and/or the Appellate Division. The fact that the instant tenant did not avail herself of the existing avenue of review (e.g., Matter of Williams v. Franco, 262 A.D.2d 45; Matter of Powell v. Franco, 257 A.D.2d 509; Matter of Spand v. Franco, 242 A.D.2d 210; Matter of Turner v. Franco, 237 A.D.2d 225) does not warrant the judicial expansion of RPAPL 753(4). Aronin, J.P. and Golia, J., concur.
However, the record demonstrates that petitioners have a long and commendable record as Housing Authority tenants and that the subject incident, involving their son, Kenneth, was an isolated and apparently aberrant episode in an otherwise stable and law-abiding family. Moreover, Kenneth, as a consequence of his arrest on project grounds; ultimately pleaded guilty not to drug possession or sale, but to disorderly conduct, and successfully completed a sentence for that offense of five days of community service. Under these circumstances, we find the penalty of petitioners conditional exclusion from public housing shocking to our sense of fairness and remand the matter for imposition of a lesser penalty ( see, Matter of Turner v. Franco, 237 A.D.2d 225; Matter of Cheek v. Hernandez-Pinero, 198 A.D.2d 106, lv denied 84 N.Y.2d 801). Concur — Ellerin, J.P., Nardelli, Wallach and Rubin, JJ.
The court has the power to deny dismissal of an article 78 petition when such a dismissal "shocks our sense of fairness". ( Matter of Turner v Franco, ___ A.D.2d ___, ___, 1997 N.Y. Slip Op 02823 [1st Dept, Mar. 27, 1997].) A dismissal in this case, based upon a technical failure which does not implicate the primary concern of the fee-generating statute, would be patently unfair.