Opinion
13018 Index No. 101284/19 Case No. 2020-03480
02-02-2021
In the Matter of Francine BRYANT, Petitioner–Appellant, v. Kathryn GARCIA, as Interim Chair of the New York City Housing Authority et al., Respondents–Respondents.
Janet E. Sabel, The Legal Aid Society, Staten Island (Teresa K. DeFonso of counsel), for appellant. Lisa Bova–Hiatt, New York City Authority Law Department, New York (Andrew M. Lupin of counsel), for respondents.
Janet E. Sabel, The Legal Aid Society, Staten Island (Teresa K. DeFonso of counsel), for appellant.
Lisa Bova–Hiatt, New York City Authority Law Department, New York (Andrew M. Lupin of counsel), for respondents.
Renwick, J.P., Webber, Gonza´lez, Scarpulla, JJ.
Judgment, Supreme Court, New York County (John J. Kelley, J.), entered February 10, 2020, denying the petition to vacate respondent New York City Housing Authority's (NYCHA) determination, dated July 17, 2019, which terminated petitioner's tenancy upon a finding that she assaulted and injured a NYCHA employee, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously reversed, on the facts, without costs, and the petition granted to the extent of remanding the matter to respondent for the imposition of a lesser penalty.
The termination of the tenancy of petitioner, a now 64–year–old woman who has been a NYCHA tenant without incident for more than 40 years and will be evicted from her home along with her adult daughter because she suffered a momentary loss of control when she struck respondent's employee, whom she believed to be in a relationship with her former partner, is "so disproportionate to [her] offense, in the light of all the circumstances, as to be shocking to one's sense of fairness" ( 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] [internal quotation marks omitted]; see e.g. Matter of Rock v. Rhea, 114 A.D.3d 578, 582, 981 N.Y.S.2d 53 [1st Dept. 2014] ; Matter of Milton v. Christian, 99 A.D.2d 984, 473 N.Y.S.2d 194 [1st Dept. 1984] ; Matter of Winn v. Brown, 226 A.D.2d 191, 640 N.Y.S.2d 527 [1st Dept. 1996] ; Matter of Spand v. Franco, 242 A.D.2d 210, 663 N.Y.S.2d 813 [1st Dept. 1997], lv denied 92 N.Y.2d 802, 677 N.Y.S.2d 72, 699 N.E.2d 432 [1998] ; Matter of Peoples v. New York City Hous. Auth., 281 A.D.2d 259, 723 N.Y.S.2d 6 [1st Dept. 2001] ; Cohoes Hous. Auth. v. Doe, 59 Misc.3d 572 [Cohoes City Ct. 2018] ).
Given the facts presented as well as the lack of any evidence presented by NYCHA that petitioner's continued occupancy presents a concern to the safety of NYCHA employees or a risk to the other NYCHA tenants, this Court finds that a lesser penalty is warranted (see Matter of Spand v. Franco, 242 A.D.2d at 210–211, 663 N.Y.S.2d 813 ).