In the Matter of Mary Peoples, Petitioner, v. New York City Housing Authority et al., Respondents

In the Matter of Mary Peoples, Petitioner, v New York City Housing Authority et al., Respondents. [723 NYS2d 6] [MAJORITY] —Determination of respondent New York City Housing Authority, dated November 10, 1998, which terminated petitioner’s public housing tenancy on the ground of nondesirability, unanimously modified, on the law, the penalty of termination vacated, the matter remanded to respondents for imposition of a lesser penalty, and this proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Paula Omansky, J.], entered September 24, 1999) otherwise disposed of by confirming the remainder of the determination, without costs. This Court has the authority to review an administrative sanction that “shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a matter of law” (Matter of Featherstone v Franco, 95 NY2d 550, 554). The drastically disproportionate remedy of expelling petitioner from her home for this incident, after her long and unblemished tenancy, amounts to such an abuse of discretion (see, Matter of Holiday v Franco, 268 AD2d 138). While substantial evidence supports respondents’ finding that petitioner “physically confronted” and “accosted” the Housing Authority’s representative during an inspection of her apartment for repairs, and while this is certainly a very serious breach of respondents’ rules, the penalty of termination shocks our sense of fairness. As the Hearing Officer noted in urging respondents to exercise “self restraint” in imposing a penalty, petitioner experienced “considerable frustration” because of the inspector’s refusal to acknowledge that her apartment was in almost constant need of repair; furthermore, petitioner suffered more distress as a result of the altercation than did the inspector, who was not seriously injured and required no medical attention, and petitioner has had an otherwise blemish-free, 24-year tenure in public housing. Accordingly, we remand the matter for imposition of a lesser penalty (Matter of Spand v Franco, 242 AD2d 210, lv denied 92 NY2d 802; Matter of Winn v Brown, 226 AD2d 191; Matter of Milton v Christian, 99 AD2d 984). Concur — Sullivan, P. J., Andrias, Wallach, Lerner and Buckley, JJ. [The unpublished Decision and Order of this Court entered herein on December 21, 2000 is hereby recalled and vacated.]