| Matter of Shuler v New York City Hous. Auth. |
| 2011 NY Slip Op 07435 [88 AD3d 895] |
| October 18, 2011 |
| Appellate Division, Second Department |
| In the Matter of Samuel Shuler, Respondent, v New YorkCity Housing Authority, Appellant. |
—[*1]
In a proceeding pursuant to CPLR article 78, in effect, to review a determination of the NewYork City Housing Authority dated August 26, 2009, which adopted the recommendation of ahearing officer dated August 11, 2009, made after a hearing, finding that the petitioner wasineligible to continue his occupancy of an apartment in a public housing development on theground of nondesirability, and terminated his tenancy, the New York City Housing Authorityappeals, by permission, from an order of the Supreme Court, Kings County (Bunyan, J.), datedMay 19, 2010, which granted the petition to the extent of remitting the matter to the New YorkCity Housing Authority for a further hearing to determine whether the petitioner's tenancy recordwas otherwise unblemished and, if so, whether the penalty of termination of his tenancy wasproper.
Ordered that the appeal is dismissed and the order is vacated, without costs or disbursements;and it is further,
Adjudged that the determination is confirmed, the petition is denied, and the proceeding isdismissed on the merits, without costs or disbursements.
The petitioner commenced this proceeding in the Supreme Court to challenge adetermination, made after an administrative hearing, of the New York City Housing Authority(hereinafter NYCHA) to terminate his tenancy on the ground of nondesirability based on thepolice finding a loaded weapon and ammunition in his NYCHA apartment. In his petition, thepetitioner, in effect, asserted that the determination was not supported by substantial evidenceand challenged the penalty of terminating his tenancy as an abuse of discretion.
In the order appealed from, the Supreme Court granted the petition to the extent of remittingthe matter to the NYCHA for a further hearing to determine whether the petitioner's tenancyrecord with the NYCHA was otherwise unblemished and, if so, whether the penalty oftermination of his tenancy was proper. The NYCHA appeals.
Since the petition raises the question of whether the challenged determination is supported bysubstantial evidence, the Supreme Court should have transferred the proceeding to this Courtwithout deciding the merits of the petition (see CPLR 7804 [g]). Nevertheless, since therecord is before us, we will treat the matter as one initially transferred here and will review theproceeding de novo (see Matter of Blakev New York City Hous. Auth., 78 AD3d 1175 [2010]; Matter of Roth v Manhasset Union FreeSchool Dist., 60 AD3d 771 [2009]).[*2]
Substantial evidence "means such relevant proof as areasonable mind may accept as adequate to support a conclusion or ultimate fact" (300Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180 [1978]). In findingan agency determination supported by substantial evidence, the proof must be more than"seeming or imaginary" (id. at 180). Further, in conducting a substantial evidence review,we are bound by the facts and record submitted to the agency, and cannot consider evidencesubmitted for the first time in a CPLR article 78 proceeding (see Matter of Kelly v Safir,96 NY2d 32, 39 [2001]; Matter of Featherstone v Franco, 95 NY2d 550, 554-555 [2000];Matter of Yarbough v Franco, 95 NY2d 342, 347 [2000]).
Here, the determination of nondesirability is supported by substantial evidence, as it is basedon evidence adduced at the hearing which indicated that the police found, in plain view, a loadedhandgun for which the petitioner could not produce a license, and a box of ammunition, alongwith police reports showing that the handgun and ammunition were fully operable (see Matter of Zimmerman v New York CityHous. Auth., 84 AD3d 526 [2011]; Matter of Jackson v Hernandez, 63 AD3d 64 [2009]; Matter of Bell v New York City Hous.Auth., 49 AD3d 284 [2008]; Harris v Hernandez, 30 AD3d 269 [2006]; Matter of Satterwhite v Hernandez, 16AD3d 131 [2005]; Matter of Burgess v Popolizio, 169 AD2d 831 [1991]; seegenerally 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d at 180).
We discern no basis for disturbing the determination to terminate the petitioner's tenancy(see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale& Mamaroneck, Westchester County, 34 NY2d 222, 230-231 [1974]; Matter of Jackson v Hernandez, 63AD3d 64 [2009]; Matter ofSatterwhite v Hernandez, 16 AD3d 131 [2005]; Matter of Burgess v Popolizio,169 AD2d 831 [1991]).
Accordingly, upon our de novo review of the proceeding, we confirm the NYCHAdetermination, deny the petition, and dismiss the proceeding on the merits. Dillon, J.P., Belen,Roman and Miller, JJ., concur.