Opinion
2013-11-6
In the Matter of John SMITH III, et al., petitioners, v. TUCKAHOE HOUSING AUTHORITY, et al., respondents.
Mihaela Petrescu, White Plains, N.Y., for petitioners. Nicholas Leo, Jr., P.C., Yonkers, N.Y., for respondents.
Mihaela Petrescu, White Plains, N.Y., for petitioners. Nicholas Leo, Jr., P.C., Yonkers, N.Y., for respondents.
WILLIAM F. MASTRO, J.P., MARK C. DILLON, DANIEL D. ANGIOLILLO, and CHERYL E. CHAMBERS, JJ.
Proceeding pursuant to CPLR article 78 to review a determination of the Tuckahoe Housing Authority dated January 14, 2012, which, after a hearing, found that the petitioners had violated paragraph 7(11) of their lease and terminated their tenancy.
ADJUDGED that the petition is granted, on the law, without costs or disbursements, to the extent that so much of the determination as terminated the tenancy is vacated, the petition is otherwise denied, the determination is otherwise confirmed on the merits, and the matter is remitted to the respondent Tuckahoe Housing Authority for the imposition of a lesser penalty.
The determination of the Tuckahoe Housing Authority (hereinafter the THA) that the petitioners violated paragraph 7(11) of their lease was supported by substantial evidence ( see Matter of Marcus v. New York City Hous. Auth., 106 A.D.3d 1088, 966 N.Y.S.2d 185;Matter of Bond v. Howard Houses [ NYCHA ], 89 A.D.3d 730, 931 N.Y.S.2d 911).
An administrative agency abuses its discretion when it imposes a punishment that is “ ‘so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness' ” (Matter of Pell v. Board of Educ. Union Free School District No. 1 of the Towns of Scarsdale and Mamaroneck, Westchester County, 34 N.Y.2d 222, 233, 356 N.Y.S.2d 833, 313 N.E.2d 321, quoting Matter of McDermott v. Murphy, 15 A.D.2d 479, 222 N.Y.S.2d 111,affd.12 N.Y.2d 780, 234 N.Y.S.2d 723, 186 N.E.2d 570;see Matter of Kreisler v. New York City Tr. Auth., 2 N.Y.3d 775, 776, 780 N.Y.S.2d 302, 812 N.E.2d 1250). “A result is shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals” ( see Matter of Pell v. Board of Educ. Union Free School District No. 1 of the Towns of Scarsdale and Mamaroneck, Westchester County, 34 N.Y.2d at 234, 356 N.Y.S.2d 833, 313 N.E.2d 321). The penalty must shock the judicial conscience as a matter of law ( see Matter of Rutkunas v. Stout, 8 N.Y.3d 897, 834 N.Y.S.2d 73, 865 N.E.2d 1239). In other words, this Court “has no discretionary authority or interest of justice jurisdiction” to review the penalty imposed by the agency (Matter of Torrance v. Stout, 9 N.Y.3d 1022, 1023, 852 N.Y.S.2d 8, 881 N.E.2d 1194).
Here, on multiple occasions, the petitioner John Smith III (hereinafter John) had confrontations with employees of the THA which interfered with the “decent, safe and sanitary” condition of the housing project. However, while employees of the THA reported feeling frightened of John because of his intimidating conduct, none of the incidents involved any violence. Prior to the incidents at issue, spanning a 14–month period, John and his wife, the petitioner Marlene Smith (hereinafter Marlene), had lived at this residence for more than 25 years without any complaints. Marlene was not involved in any of these incidents, and she encouraged John to seek counseling. Since the incidents, John has acknowledged that he has “anger issues,” sought the assistance of a psychiatrist, and participated in anger management therapy. If their lease is terminated, the petitioners will likely be left homeless. John, who suffers from several serious medical conditions, receives disability payments, while Marlene works only part-time. Under these circumstances, we conclude that the termination of the petitioners' lease was so disproportionate to the offense committed as to be shocking to the judicial conscience as a matter of law ( see Matter of Davis v. New York City Dept. of Hous. Preserv. & Dev., 58 A.D.3d 418, 871 N.Y.S.2d 86;Matter of Sicardo v. Smith, 49 A.D.3d 761, 853 N.Y.S.2d 639;Matter of Peoples v. New York City Hous. Auth., 281 A.D.2d 259, 723 N.Y.S.2d 6;Matter of Sanders v. Franco, 269 A.D.2d 118, 702 N.Y.S.2d 58). Accordingly, we remit the matter to the THA for the imposition of a lesser penalty.
The petitioners' remaining contention is without merit.