| Matter of Sicardo v Smith |
| 2008 NY Slip Op 02603 [49 AD3d 761] |
| March 18, 2008 |
| Appellate Division, Second Department |
| In the Matter of Elaine Sicardo, Appellant, v Peter Smith,Respondent. |
—[*1] Koob & Magoolaghan, Yonkers, N.Y. (Joan Magoolaghan of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 to review a determination of the Municipal HousingAuthority for the City of Yonkers, dated July 14, 2006, which, after a hearing, found that thepetitioner had violated certain rules specified in 24 CFR 982.551 for Section 8 participants andthereupon confirmed an administrative determination dated March 14, 2006, to terminate thepetitioner's participation in the Section 8 Housing Choice Voucher Program (see 42 USC§ 1437f [b] [1]).
Adjudged that the petition is granted, on the facts, without costs or disbursements, to theextent that so much of the determination as confirmed the penalty of termination is vacated; thepetition is otherwise denied, the determination is otherwise confirmed on the merits, and thematter is remitted to the respondent for the imposition of a lesser penalty.
The determination finding the petitioner in violation of the Section 8 Housing ChoiceVoucher Program regulations due to her failure to notify the respondent that her former husbandwas living in the subject residence with her and her children (see 24 CFR 982.551 [h][2]) was supported by substantial evidence (see 300 Gramatan Ave. Assoc. v State Div. ofHuman Rights, 45 NY2d 176 [1978]; Matter of Steward v Mulligan, 47 AD3d 822 [2008]; cf. Matter of Pena v Mulligan, 32AD3d 952, 953 [2006]). However, under the particular circumstances of this case, thepenalty imposed was so disproportionate to the offense as to be shocking to one's sense offairness (see generally Matter of Kreislerv New York City Tr. Auth., 2 NY3d 775, 776 [2004]; Matter of Pell v Board ofEduc. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, WestchesterCounty, 34 NY2d 222, 237 [1974]; [*2]see also 24CFR 982.552 [c] [2] [i]; cf. Matter ofSmith v New York City Hous. Auth., 40 AD3d 235 [2007]). Accordingly, we remit thematter to the respondent for the imposition of a lesser penalty.
The petitioner's remaining contentions are without merit. Mastro, J.P., Covello, Dickersonand Eng, JJ., concur.