In the Matter of Jacqueline Perez, Respondent,v.John B. Rhea,, Appellant.BriefN.Y.January 10, 2013 To Be Argued By: Marc Sackin 10 minutes requested New York County Clerk’s Index 110920/2009 COURT OF APPEALS In the Matter of the Application of JACQUELINE PEREZ, Petitioner-Respondent, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, -against- JOHN B. RHEA, as Chairman of the New York City Housing Authority, Respondent-Appellant. BRIEF OF PETITIONER-RESPONDENT MARC SACKIN, ESQ. 4108 Auburn Drive Auburn Hills, MI 48073 t: (248) 990-8099 f : (516) 868-0241 marc.sackin@gmail.com Attorneys for Petitioner–Respondent Completion Date: July 11, 2012 ii TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................................................... IV QUESTION PRESENTED ......................................................................................................... 3 APPELLANT’S APPEAL TO THIS COURT RAISED FOR CONSIDERATION THE FOLLOWING QUESTIONS FOR REVIEW: .................................................... 3 WHETHER THE APPELLATE DIVISION, FIRST DEPARTMENT PROPERLY HELD THAT THE DETERMINATION OF APPELLANT TO TERMINATE MS. PEREZ’S TENANCY WAS SO DISPROPORTIONATE TO THE OFFENSE OF UNDERREPORTING INCOME SO AS TO BE SHOCKING TO ONE’S SENSE OF FAIRNESS, IN THE LIGHT OF THE FOLLOWING MITIGATING CIRCUMSTANCES: ................................................. 3 PETITIONER RESPECTFULLY SUBMITS THAT THIS QUESTION SHOULD BE ANSWERED IN THE AFFIRMATIVE.................................................................. 3 C. Upon Review of the Record, the Appellate Division, First Department Reverses the Supreme Court Judgment and Vacates the Housing Authority’s Determination to Terminate Ms. Perez’s Tenancy ..................................................... 11 CONCLUSION .......................................................................................................................... 41 iii TABLE OF AUTHORITIES Page(s) CASES Brown v. Popolizio, 166 A.D. 2d 44 (1st Dep’t 1991) ........................................................................ 16 Davis v. New York City Dept. of Hous. Preserv. & Dev., 58 A.D.3d 418 (1st Dep’t 2009) ........................................................ 18, 19, 34,35 Dickerson v. Popolizio, 168 A.D. 2d 336 (1 st Dep’t 1990) ................................................................. 16, 25 Gray v. Donovan, 2009 NY Slip Op 123, 58 A.D.3d 488 (1st Dep’t 2009) ........................ 20, 21, 32 Holiday v. Franco, 268 A.D. 2d 138, 709 N.Y.S. 2d 523 (1 st Dep’t 2000) ........................... 16, 30, 35 James v. New York City Housing Authority, 186 A.D.2d 498, 589 N.Y.S.2d 331 (1st Dep’t 1992) ........................................ 24 Johnson v. New York City Hous. Auth., 266 A.D.2d 102 (1st Dep’t 1999) ................................................................. 32, 35 Lesser v. Park Realty, 527 N.Y.S.2d 787 (1st Dep’t 1988) .................................................................... 33 Martinez v. Franco, 272 A.D.2d 234 (1st Dep’t 2000) ....................................................................... 32 Milton v. Christian, 99 A.D. 2d 984 (1st Dep’t 1984) .................................................................. 16, 30 NCL Realty v. Sunga, N.Y.L.J. May 31, 1988 ........................................................ 33 Pell v. Board of Education, 34 N.Y.2d 233, 356 N.Y.S.2d 833 (1974) .......................................................... 17 Peoples v. New York City Hous. Auth., 281 A.D.2d 259 (1st Dep’t 2001) ................................................................. 30, 31 iv Perry v. Popolizio, N.Y.L.J. December 16, 1987, p. 11 c.4 (Sup. Ct. N.Y.), aff'd, 146 A.D. 2d 974 (1st Dep’t 1989) ............................................................................. 29 Smith v. New York City Hous. Auth., 40 A.D.3d 235 (1st Dep’t 2007) ......................................................................... 26 Spand v. Franco, 242 A.D.2d 210 (1st Dep’t 1997) ........................................................... 30, 32, 34 Stroman v. Franco, 253 A.D.2d 398 (1st Dep’t 1998) ....................................................................... 35 Turner v. Franco, 237 A.D. 2d 225 (1st Dep’t 1997) ........................................... 30, 38_BA_Cite_210 Vazquez v. New York City Hous. Auth., 57 A.D.3d 360 (1st Dept 2008) ................................................................... passim Williams v. Donovan, 60 A.D.3d 594 (1st Dep’t 2009) ................................................................... 20, 30 Williams v. Franco, 262 A.D.2d 45 (1st Dep’t 1999) ................................................................... 32, 34 Wise v. Morales, 85 A.D.3d 571, 572 (1st Dep’t 2011), lv denied 18 N.Y.3d 808 (2012) ........................................................................................................... passim STATUTES CPLR 7803 ................................................................................................... 10, 17, 22 -1- PRELIMINARY STATEMENT This Court should deny the appeal of Appellant John B. Rhea, as Chairman of the New York City Housing Authority (the “Appellant”, “Housing Authority” or “NYCHA”) of the order of the Appellate Division, First Department dated August 25, 2011 (the “Appellate Division Order”) which reversed the judgment of the Supreme Court, New York County (Feinman, J.) (the “Supreme Court Judgment”) and vacated the Housing Authority’s penalty of terminating the tenancy of Petitioner-Respondent Jacqueline Perez (“Petitioner” or “Ms. Perez”) and remanded the matter to the Housing Authority for the imposition of a lesser penalty. As fully set forth below, the Appellate Division Order was a thoroughly analyzed decision that is reflected by clearly articulated reasoning and supported by clear precedent of this Court and the Appellate courts of this State. Under governing law and precedent established by this Court, the Appellate Division had the authority to vacate the Housing Authority’s unjust determination to terminate Ms. Perez’s tenancy so long as the court was justified to conclude, based on its review of the record, that the penalty of terminating Ms. Perez’s tenancy was disproportionate to Ms. Perez’s offense and shocks the sense of fairness in light of mitigating circumstances. That is precisely the analysis that the First Department conducted, and the proper conclusion it reached, in the case at bar. -2- In reversing the Supreme Court Judgment and vacating the Housing Authority’s determination to terminate the tenancy of Ms. Perez, the Appellate Division relied upon the clear evidence supported by the record, which shows that in light of the following mitigating factors, the Housing Authority’s determination to terminate Ms. Perez’s tenancy was so disproportionate to Ms. Perez’s offense that that it shocks the sense of fairness, was arbitrary and capricious and constituted an abuse of discretion: Since June of 2007, Ms. Perez has been in full compliance with a repayment schedule agreed upon with the Housing Authority by which she has been repaying her debt due to the Housing Authority in the form of monthly payments. In a few short years, her full restitution will be complete. See Record on Appeal (“R.”) 160; 365- 80 (proof of payment); The physical and mental health of Ms. Perez’s two disabled children – and particularly Ms. Perez’s nine-year old disabled son who also suffers from seizures – will be seriously compromised if Ms. Perez and her family are evicted. See R. 291-94; Ms. Perez has been a resident in NYCHA public housing for over 39 years. Other than the present charges, she has no prior criminal record and has been a model tenant throughout her tenancy. See R. 288; and Ms. Perez has searched for alternate housing, but due to the low wages she earns from the employment she maintains while being a single mother, she has been unable to afford any suitable non- NYCHA housing. Thus, if her tenancy is terminated, Ms. Perez and her three children will likely be rendered homeless. See R. 158-59. As demonstrated below, the Appellate Division Order was consistent with the holdings of this Court and the appellate courts throughout the State of New York which have repeatedly vacated termination penalties imposed -3- by the Housing Authority where the offense and mitigating factors were analogous to those present in the instant case. Accordingly, Appellant’s appeal should be denied. QUESTION PRESENTED Appellant’s appeal to this Court raised for consideration the following questions for review: Whether the Appellate Division, First Department properly held that the determination of Appellant to terminate Ms. Perez’s tenancy was so disproportionate to the offense of underreporting income so as to be shocking to one’s sense of fairness, in the light of the following mitigating circumstances: (a) Ms. Perez’s full compliance with an agreed upon repayment plan, pursuant to which she has been repaying her indebtedness to the Housing Authority; (b) Ms. Perez’s record as a model tenant; and (c) The devastating effect eviction would have on Ms. Perez and her children, two of whom suffer from disabilities. Petitioner respectfully submits that this question should be answered in the affirmative. -4- BACKGROUND A. Ms. Perez Has Complied With an Agreed-Upon Repayment Schedule To Repay Her Debt to the Housing Authority Jacqueline Perez, aged 39, 1 has lived in NYCHA public housing her entire life, with the exception of one 8-month period. She has lived in her current NYCHA apartment for more than 19 years. She presently lives with her daughter Tina, aged 23, and sons Brandon, aged 19 and Jacob, aged 9. Verified Petition (hereinafter “Ver. Pet.”), ¶18, R. 288. With the exception of the instant action, in her almost 39 years of living in NYCHA public housing, not a single complaint has ever been alleged against Ms. Perez by any NYCHA Housing Manager, tenant or anybody else. Ver. Pet., ¶¶19-20, R. 288; see also transcript of administrative hearing (hereinafter “transcript”), R. 152. In addition, Ms. Perez has no criminal record. Ver. Pet., ¶¶ 19-20, R. 288. In 2006, the Housing Authority sent a fax to Ms. Perez’s employer, Flash Clinic, inquiring as to whether Ms. Perez was an employee. Immediately thereafter, Ms. Perez and the former Assistant Housing Manager of NYCHA, Mr. Emmeric, had a conversation over the telephone 1 As the instant brief is written approximately three years following Petitioner’s Verified Petition in this matter, dated July 31, 2009, beginning on R. 25, all referenced individuals are three years older than their stated age in the Verified Petition. All references in this brief to an individual’s age account for the individual’s age as of the date of this brief. In addition, all references to the number of years spent in NYCHA housing reflect the amount of time as of the date of this brief. -5- during which time Ms. Perez immediately admitted that she had been underreporting her income. Mr. Emmeric then orally requested that he and Ms. Perez have an informal meeting where Ms. Perez should bring a copy of her pay stubs. Mr. Emmeric never informed Ms. Perez that this meeting could result in the commencement of termination of tenancy proceedings. Nor did Mr. Emmeric inform Ms. Perez of any grounds for which any eviction proceedings could be commenced. Ver. Pet., ¶21, R. 288. Both Mr. Emmeric and Ms. Read, another Assistant NYCHA Housing Manager, were present when Ms. Perez appeared at the informal meeting pursuant to Mr. Emmeric’s request. Because Ms. Perez was never informed that termination of tenancy proceedings could be commenced, she was not accompanied by an attorney. 2 At this time, Ms. Perez once again admitted that she had been underreporting her income. Mr. Emmeric and Ms. Read reached an unwritten agreement with Ms. Perez where Ms. Perez agreed to gradually make NYCHA whole by paying a prorated increased amount of 2 Chapter VII(IV)(C)(1) of the NYCHA Management Manual provides, “If … despite previous discussion, written notice or other remedial action, the Housing Manager believes that termination proceedings should be initiated against a tenant, First Call-In Letter, Form 040.185 shall be used to call the tenant to the office for an interview. This letter must be addressed to each tenant of record. At the interview, the tenant may be accompanied by someone, such as an attorney, to assist him/her.” Ms. Perez never received a Form 040.185 First Call-In Letter, as required by Chapter VII(IV)(C)(1), either prior to or following Ms. Perez’s initial meeting with Mr. Emmeric and Ms. Read. Ver. Pet., ¶23, R. 289. For this reason alone, NYCHA’s determination to terminate Ms. Perez’s tenancy was contrary to its mandated procedures, inappropriate and properly vacated. -6- rent each month, as determined by the NYCHA. Ms. Perez complied with the terms of this unwritten agreement. Ver. Pet., ¶22, R. 288. In a letter dated July 6, 2006, Chief Investigator Christopher A. France requested that Ms. Perez appear at the Housing Authority’s offices at 250 Broadway on July 21, 2006 for an interview regarding her tenancy. This letter was not a First Call-In Letter, Form 040.185. A copy of the letter sent by Chief Investigator Christopher A. France is attached beginning at R. 359. At this meeting, Ms. Perez once again admitted that she had underreported her income and offered to make a full restitution in any way NYCHA deems appropriate. Mr. France did not inform Ms. Perez at this meeting that her tenancy was in jeopardy of being terminated. Ver. Pet., ¶24, R. 289. In a letter dated November 29, 2006, Ms. Perez learned that criminal charges were being brought against her due to the underreporting of her income. R. 362. In a Confession of Judgment subsequent to her arrest, Ms. Perez pled guilty to petit larceny, a Class A misdemeanor. Id. Under the Confession of Judgment, she was accorded a conditional discharge so long as she complies with the terms of a restitution stipulation agreed upon between Ms. Perez, the Assistant District Attorney and Ms. Dillard of the Housing Authority (the “Restitution Stipulation”), in which all parties -7- agreed that Ms. Perez would pay the Housing Authority the sum of $300 per month until the “indebtedness in the sum of $20,000 to the New York City Housing Authority” is reached. R. 364. During the negotiations to reach the terms of the Restitution Stipulation, Ms. Dillard never once mentioned that Ms. Perez’s lease may be terminated. Ver. Pet., ¶26, R. 289-90. The Judge who presided over Ms. Perez’s plea orally instructed her that, in addition to making her normal rent payments, effective immediately her only obligation in her efforts to make a full restitution is to pay the separate $300 monthly payments. Ms. Williams, the NYCHA Housing Manager, likewise later also told Ms. Perez that due to her entering into the Restitution Stipulation, she is not required to make rent payments in excess of her normal rent other than the separate $300 monthly payments. Ver. Pet., ¶25, R. 289. Since July 2007 up until the present date, Ms. Perez has been in complete compliance with the repayment schedule provided in the Restitution Stipulation. Indeed, Ms. Perez has promptly made a separate payment of $300, in addition to her monthly rent payments, payable to NYCHA each and every month. A copy of Ms. Perez’s proof of monthly payments to the NYCHA in the form of checks and money orders, as well as -8- monthly receipts from Safe Horizon Manhattan Restitution is attached beginning at R. 365; see also R. 155 (transcript, p. 15). Despite Ms. Perez’s full compliance with the repayment schedule provided for in the Restitution Stipulation, in a letter dated November 24, 2008, the Housing Authority egregiously provided Ms. Perez with a Notice of a Hearing pursuant to a recommendation that her tenancy be terminated due to the charges of non-desirability, misrepresentation, non-verifiable income and breach of rules. R. 382. This was the first time – and more than two years after she commenced complying with her repayment schedule – that Ms. Perez was informed that her tenancy was in jeopardy of being terminated. Ver. Pet., ¶29, R. 290-91. This was likewise the first time she was informed of the specific charges against her. Id. The only indiscretion mentioned in the Notice of Hearing is Ms. Perez’s underreporting of income from about 1999 to 2005. R. 382. B. The Housing Authority and the Trial Court Approved the Hearing Officer’s Decision to Terminate Ms. Perez’s Tenancy Despite Significant Mitigating Evidence The hearing to terminate Ms. Perez’s tenancy occurred on June 9, 2009. Chief Investigator Christopher France testified at the hearing and admitted that, other than underreporting income, he could not recollect anything in Ms. Perez’s tenancy file that would warrant an investigation and -9- that the NYCHA had never received any complaints concerning Ms. Perez. R. 152 (transcript p.12 [“Q: Okay. Sir, have you ever known to have received, and you, I mean the Housing Authority in general, received any complaints about Ms. Perez from any tenants, building managers or anybody else? A: Other than this complaint here that she didn’t report her income? Q: Right. A: Never. Nothing else.”]). Mr. France also testified that he is not aware of any other acts committed by Ms. Perez or her family members that would be deemed offensive to her lease or violations of the lease. R. 156 (transcript p. 16). In addition, Mr. France testified that he was aware that Ms. Perez agreed to make arrangements to make a full restitution for any outstanding moneys owed to the NYCHA and that he believed she was current with her restitution payments. R. 154 - 55 (transcript pp. 14-15). At the hearing, Ms. Perez testified that she lives with her three children. She stated that her then-sixteen year old son Brandon has dyslexia, learning disabilities and emotional problems and her then-six year old son Jacob has been diagnosed with speech problems, attention deficit and hyperactivity disorder, combined type (“ADHD”), learning disabilities and emotional problems. R. 158 (transcript pp. 18). She also testified that she has attempted to find suitable housing for her family other than her NYCHA -10- housing but has been unsuccessful due to the meager income she obtains from her current job. R. 158 -59 (transcript pp. 18-19). In addition, Ms. Perez testified that she has never missed a payment from her restitution schedule and, other than the instant incident, she has never received a notice of violation or had to attend a hearing or similar proceeding concerning her tenancy. R. 160 (transcript p. 20). This was not rebutted by the Housing Authority. She also testified that although she made the mistake of underreporting her income to the NYCHA, she had always reported her income to the appropriate welfare agency and, accordingly, stopped receiving welfare payments. R. 160 (transcript p.20). Despite this testimony, in the decision and disposition of the Hearing Officer that was adopted by the NYCHA, the Hearing Officer terminated Ms. Perez’s tenancy even though he found Ms. Perez’s testimony about “[t]he plight of the family, especially with a disabled child,” to be credible. R. 249. The NYCHA approved the Hearing Officer’s decision on June 24, 2009. R. 251. Further, notwithstanding the devastating impact that eviction will have on Ms. Perez and her family, by judgment dated March 31, 2010 and subsequently filed April 28, 2010, the Supreme Court denied petitioner’s Verified Petition seeking a judgment pursuant to Article 78 of the CPLR -11- annulling, vacating and setting aside, or in the alternative, remanding the matter for imposition of a lesser penalty, the determination of the Housing Authority which terminated Ms. Perez's tenancy. R. 28-33. C. Upon Review of the Record, the Appellate Division, First Department Reverses the Supreme Court Judgment and Vacates the Housing Authority’s Determination to Terminate Ms. Perez’s Tenancy Petitioner filed a Notice of Appeal of the Supreme Court Judgment on May 17, 2010. R. 25-26. On appeal, Petitioner argued that the Supreme Court erred in determining that termination of the tenancy of Ms. Perez and her three children was not an excessive penalty based on the facts of this case. As was understood by the Appellate Division, if Ms. Perez is evicted from her apartment, she and her family will be rendered homeless and will lose their affordable apartment of more than 19 years. This is particularly egregious considering the adverse impact such an eviction would have on Ms. Perez’s three children, two of whom are disabled. Ms. Perez’s 19-year old son Brandon, who Ms. Perez testified has dyslexia, learning disabilities and emotional problems, lives with Ms. Perez and is a student in good standing at the Graham High School. As evidenced by a letter written by Graham High School’s Assistant Intake and Discharge Coordinator, “Brandon is a student with a disability and requires special -12- instruction in an environment with a smaller student-to-teacher ratio and minimal distractions in order to progress in achieving the learning standards.” The letter also states that Brandon continues to make progress at Graham High School and that “[h]e needs the structure of a small setting [such as Graham High School] to support his academic needs.” A copy of the letter is attached beginning at R. 404; see also Ver. Pet., ¶34, R. 292. Evicting Ms. Perez would result in Brandon becoming homeless, which would severely disrupt his educational pursuits and possibly force him to live too far away to commute to the Graham School, thus forcing him to disenroll. Ver. Pet., ¶34, R. 292. As stated above, Ms. Perez’s 9-year old son Jacob has been diagnosed with ADHD. Due to his condition, Jacob experiences severe emotional vulnerability, which on occasion results in violent outbursts. Ver. Pet., ¶35, R. 292-93; see also R. 158 (transcript pg. 18). Fortunately, Jacob has attended DREAM Charter School (“DREAM Charter”) since December of 2008, where he has been able to receive an individualized educational plan as mandated by New York State. At DREAM Charter, he receives individualized speech therapy and counseling services once per week as well as the benefits of a smaller classroom setting. See letter from DREAM Charter attached beginning at R. 409; see also Ver. Pet., ¶35, R. 292-93. -13- Should Ms. Perez be evicted from NYCHA housing, her family will likely be forced to move far from East Harlem, which will necessitate a school change for Jacob and have a severe adverse effect on Jacob’s progress. Jacob has also suffered from seizures on three separate occasions. Indeed, in March 2006, Jacob was admitted to the Metropolitan Hospital Center for a full week of examinations due to a seizure. Ver. Pet., ¶38, R. 293-94. Metropolitan Hospital Center is located across the street from Ms. Perez and Jacob’s current NYCHA housing address, which enables Jacob to reach a hospital in a manner of minutes in the event another seizure occurs. In addition, the nurse station located in DREAM Charter is affiliated with Mount Sinai Hospital. Ver. Pet., ¶38, R. 293-94. Thus, if Jacob were to unexpectedly suffer from a seizure while attending school, DREAM Charter’s nursing station would be fully prepared and equipped to immediately send him to Mount Sinai for treatment. If Ms. Perez and her family are evicted and Jacob no longer can attend DREAM Charter, he will no longer have such ready access to Mount Sinai Hospital, rendering his health and safety further compromised. The plight of Ms. Perez’s family is also particularly vulnerable because although Ms. Perez is a single mother of three children and maintains a job, without access to public housing, the wages Ms. Perez earns -14- from her current employment are not enough to enable her to sufficiently provide for her family. Ms. Perez is employed by a company, Flash Clinic, as an assistant bookkeeper for Accounts Receivables. Ver. Pet., ¶41, R. 295. Flash Clinic is located on 164 West 25th Street. Id. Even with the modest income she receives from Flash Clinic, Ms. Perez struggles to have sufficient funds to provide for her family and maintain the health of her children. See R. 158-59 (transcript pp. 18-19). Further, Ms. Perez has searched for alternate affordable housing but due to the low wages she earns from Flash Clinic has unfortunately been unable to afford any non-NYCHA housing. See R. 159 (transcript p. 19). Being evicted from NYCHA public housing would therefore result in Ms. Perez and her family becoming homeless. In addition, it is possible that the homeless shelter where Ms. Perez would have to live would be far from Flash Clinic, which would render it impossible for Ms. Perez to complete work at 2:30 p.m. and then return to the homeless shelter in time for Jacob’s return from school. Thus, Ms. Perez’s eviction may prevent Ms. Perez from being able to continue to work at Flash Clinic. Loss of her employment would render it even more difficult for Ms. Perez to care for her three children. Ver. Pet., ¶41, R. 295. -15- Based on the foregoing, by Appellate Division Order dated August 25, 2011, the Appellate Division issued a well-reasoned decision which reversed the Supreme Court Judgment to the extent of vacating the Housing Authority’s penalty of terminating Ms. Perez’s tenancy and remanded the matter to the Housing Authority for the imposition of a lesser penalty. In the Appellate Division Order, the Appellate Division found termination of Ms. Perez’s tenancy “shockingly disproportionate to the offense” (R. 15), and stated, in pertinent part: Where petitioner, a model tenant, has faithfully abided by an agreement with [the Housing Authority] to make full restitution of her rent underpayments, the decision to terminate her tenancy constituted a disproportionate penalty that would likely leave petitioner, the single mother of three children who also reside in the apartment, two of whom have disabilities, homeless. Appellate Division Order, R. 18. On October 26, 2011, the Housing Authority served Petitioner with a motion before the First Department pursuant to section 5602(b)(2)(i) of the CPLR for leave to appeal to this Court. By Order entered on January 5, 2012, the First Department denied the Housing Authority’s motion. By Notice of Motion dated January 19, 2012, the Housing Authority brought the instant motion before this Court for leave to appeal to this Court, which was granted on March 29, 2012. R. 3. -16- ARGUMENT THIS COURT SHOULD AFFIRM THE WELL-REASONED DECISION OF THE APPELLATE DIVISION, WHICH IS IN CONFORMITY WITH WELL-SETTLED PRECEDENT As the Appellate Division correctly noted in its Appellate Division Order, “the forfeiture of public housing accommodations is a drastic penalty because, for many residents, it constitutes a tenancy of last resort.” R. 15 (quoting Holiday v. Franco, 268 A.D. 2d 138, 142, 709 N.Y.S. 2d 523, 524 (1st Dep’t 2000)); see also Matter of Wise v Morales, 85 A.D.3d 571, 572 (1st Dep’t 2011), lv denied 18 N.Y.3d 808 (2012) (identical quote). Accordingly, in specifically discussing the disposition of a NYCHA termination of tenancy hearing, New York courts have consistently held that the penalty must be proportionate to the offense. See, e.g., Brown v. Popolizio, 166 A.D. 2d 44 (1st Dep’t 1991); Dickerson v. Popolizio, 168 A.D. 2d 336 (1st Dep’t 1990); Milton v. Christian, 99 A.D. 2d 984 (1st Dep’t 1984). Considering the circumstances of Ms. Perez’s case, the Appellate Division was correct to hold, based on its thorough review of the record and analysis of governing precedent, that the Housing Authority’s determination to terminate Ms. Perez’s tenancy was far too harsh a penalty that shocks the conscience. Indeed, this Court has articulated the well-settled standard of -17- review that a court must set aside administrative determinations where, as here: the punishment or discipline imposed is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness. Pell v. Board of Education, 34 N.Y.2d 233, 356 N.Y.S.2d 833 (1974). A punishment 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 ... of the individual, or to the harm or risk of harm to the agency ... . Id. at 842. See also CPLR 7803(4). Under these standards set forth by this Court, termination of Ms. Perez’s tenancy is a completely disproportionate penalty to her offense of underpaying her rent. Ms. Perez is a long-time resident of NYCHA housing who, since March of 2007, has been repaying her debt to the Housing Authority in the form of monthly payments in the amount of at least $300 per month in accordance with a payment schedule agreed upon with the NYCHA Housing Manager and later modified as party of the Restitution Schedule. Moreover, the Housing Authority terminated Ms. Perez’s tenancy even though it found Ms. Perez’s testimony concerning “[t]he plight of the -18- family, especially with a disabled child,” to be credible. R. 251. As such, the Housing Authority has readily acknowledged that Ms. Perez’s employment, and the physical and mental health of her nine-year old disabled son, will be seriously compromised if she is evicted and her family is rendered homeless. Accordingly, the Appellate Division Order, which reversed the Supreme Court Judgment and vacated the determination of Appellant to evict Ms. Perez and her children, was consistent with governing law set forth by this Court and should be affirmed. A. The Appellate Division Properly Considered Mitigating Factors in Vacating the Determination of the Housing Authority The Appellate Division properly followed governing precedent established by other New York state courts, which have repeatedly held that evicting a tenant and her family for the concealment of income can be an unjustifiable penalty in light of mitigating circumstances, such as those present here. Indeed, the cases cited by the majority in the Appellate Division Order are factually analogous to the facts present in the record on this appeal where a termination decision of the Housing Authority was vacated in light of analogous mitigating circumstances, even where allegations of fraud were present. The court in Matter of Davis v. New York City Dept. of Hous. Preserv. & Dev., 58 A.D.3d 418 (1st Dep’t 2009) held that an administrative -19- body’s termination of tenancy decision was disproportionate to the offense, where, as here, the tenant failed to disclose certain income, stating: [The agency’s] finding that petitioner intentionally failed to disclose her son’s SSI benefits is supported by substantial evidence and has a rational basis in the record. The penalty of termination of the rent subsidy is shockingly disproportionate to the offense, however, since it will likely lead to homelessness for petitioner, a 25-year tenant, and the three minor children who live with her, one of whom is disabled. … While we do not condone petitioner’s apparent misrepresentation and recognize that repeated such misrepresentations may warrant termination even absent harm to the agency, we remand to [the agency] to determine an appropriate lesser penalty. Id. at 419 (emphasis added). Like in Davis, here Ms. Perez committed the indiscretion of repeatedly underreporting the income of her household. But also like in Davis, the penalty of termination of tenancy determined by Appellant was shockingly disproportionate to the offense in light of the fact it will leave Ms. Perez and her three innocent children, two of whom are disabled, homeless. The judgment rendered by the Davis court was consistent with other decisions of the Appellate courts cited by the majority in the Appellate Division Order, which also vacated decisions of the Housing Authority to terminate a tenant’s tenancy or housing subsidy due to failure to report -20- income because under the circumstances the penalty to both the tenant and her family was disproportionate to the offense. In Gray v. Donovan, 58 A.D.3d 488 (1st Dep’t 2009) the Appellate Division vacated the lower court’s affirmation of an administrative ruling to terminate a tenant’s housing subsidy on the ground that she failed to report income. The court found “termination of petitioner’s housing subsidy to be shockingly disproportionate to the offense” because “[p]etitioner has lived in the subject building for more than 30 years with no record of any prior offenses, and the record suggests that termination of the subsidy will likely lead to homelessness for petitioner and her 13-year-old son.” The court remanded the case for a determination of a lesser penalty based on the amount of excess subsidy received by the tenant. Id. at 489. In Williams v. Donovan, 60 A.D.3d 594 (1st Dep’t 2009) the Appellate Division likewise vacated the tenant’s penalty of termination of a housing subsidy and remitted the matter for imposition of a lesser penalty where the tenant failed to report certain household income. The court held that in light of the fact that the tenant “has resided in the apartment for 28 years and has heretofore had an unblemished tenancy,” the penalty of termination of a subsidy was “shockingly disproportionate to the offense.” Id. at 595. See also, e.g., Vazquez v. New York City Hous. Auth., 57 -21- A.D.3d 360 (1st Dep’t 2008) (vacating NYCHA’s decision of termination of tenancy where mitigating circumstances were present even though tenant pled to a guilty plea of the felony offense of grand larceny); McIntosh v. New York City Hous. Auth., 2010 NY Slip Op 30213U, at *7 (N.Y. Sup. Ct. Jan. 26, 2010) (finding penalty of termination of subsidy disproportionate to the offense of underreporting income). Here, as in Gray and Williams, Ms. Perez admitted to underreporting her income. Also similar to the above cases, a decision of termination will have severe consequences, including the possibility of homelessness, not only for Ms. Perez but also for the relatives for whom she supports – namely her three children, two of whom have disabilities. Ver. Pet., ¶¶ 32-39. R. 291-94. 3 As such, a penalty of eviction would be “arbitrary and capricious 3 The Housing Authority is incorrect in its contention that the Gray and Williams cases are inapposite due to the Housing Authority’s assertion that in those cases, the impact of the misrepresentation was “either unknown or there was no injury.” See Appellant’s Br. at 27. Rather, despite the Housing Authority’s incorrect contention, the Williams court did not find it at all significant whether the amount of the excess subsidy received by the petitioner was known. 60 A.D.3d 594. Instead, the court vacated the termination decision without regard to the amount of excess subsidy and stated that the precise amount of the excess subsidy should be considered on remand. Id. Similarly, despite the Housing Authority’s incorrect assertion, the court in Gray did not condition its decision that the penalty of termination was disproportionate on a finding that the misrepresentation had not “injured” the Housing Authority by affecting the tenant’s housing subsidy. Rather, the Gray court considered mitigating factors such as the tenant’s otherwise unblemished record and the impact homelessness would have on the tenant’s child – which are both mitigating factors present here – and vacated the lower court’s decision. 58 A.D.3d 488 -22- or an abuse of discretion” and was therefore properly annulled See CPLR 7803(4). 1. Ms. Perez’s Compliance With a Payment Schedule That Will Allow Her to Make a Full Repayment of All Rent Due is a Mitigating Factor That Weighs Against Her Eviction In the Appellate Division Order, the Appellate Division properly considered Ms. Perez’s full compliance with a repayment schedule to make a complete restitution for her debts owed as a mitigating factor that weighs in favor of vacating the decision to terminate her tenancy. Indeed, she has made monthly payments of at least $300 per month since June of 2007 to cure her previous underpayments. Ver. Pet., ¶¶ 27-28, R. 290; see also R. 365-380 (proof of payment). She has already diligently paid back well over $10,000.00 of the money she owes to the NYCHA and in a few years her full restitution will be complete. See R. 368-380 (proof of payment). Importantly, the Confession of Judgment provides that once Ms. Perez makes a full restitution, she “shall be released from liability, including criminal or civil.” R. 364. It is uncontested that she has not once been late in a payment since June of 2007. Accordingly, the circumstances underlying the charge that Ms. Perez underreported her income no longer exist. As such, the Appellate -23- Division properly annulled Appellant’s callous decision to terminate the tenancy of Ms. Perez and her children. Appellant’s argument that this Court should ignore this mitigating factor because it was, in part, based on a criminal plea agreement, is contradicted by governing law. Resp. Br. at 26-28. Indeed, in Vazquez v. New York City Hous. Auth., 57 A.D.3d 360 (1st Dep’t 2008) the Appellate Division vacated the NYCHA’s decision of termination of tenancy where the tenant was charged with being chronically delinquent in paying rent and pled to a guilty plea of the felony offense of grand larceny in the third degree. Id. at 360. The court found the penalty of eviction to be overly drastic in light of the mitigating factor that “petitioner has cured the conditions that led to the determination of nondesirability: she has paid full restitution … and has complied with all the conditions of her probation.” Id. The Vazquez court also found the facts – all present here – that the tenant cares for a family member with disabilities, “has no prior criminal record, and her criminal conduct appears to have been an isolated aberration” to be significant mitigating factors weighing in favor of vacating the Housing authority’s termination determination. Id. at 361. Likewise, in Matter of Wise v Morales, 85 A.D.3d 571, 572 (1st Dep’t 2011), lv denied 18 N.Y.3d 808 (2012), the Appellate Division vacated the -24- Housing Authority’s penalty of eviction and remanded for the imposition of a lesser penalty where, as here, the Housing Authority terminated a tenant’s tenancy based upon findings that she did not disclose her employment and erred by not reporting employment income on her affidavits of income. Based on facts that are practically indistinguishable from the case at bar, the court in Wise considered mitigating circumstances and stated: Petitioner [tenant] has at all times been willing to repay all outstanding arrears. She fully cooperated with respondent [Housing Authority], executing a confession of judgment and a separate stipulation as to monies owed the housing authority. … Like the tenants in the cited cases, petitioner has admitted to under-reporting income and has made every effort to cure the violation. Termination of her tenancy would have severe consequences not only for petitioner but for the three children she supports, all of whom face homelessness in the event of eviction. Since the penalty is “shockingly disproportionate to the offense,” we hereby vacate the penalty and remand for imposition of a lesser penalty. Id. at 573. Similarly, the court in Vargas v. Franco, 238 A.D.2d 274, 275 (1st Dep’t 1997) vacated the Housing Authority’s determination to terminate a tenant’s tenancy due to the arrest of an occupant of the premises. The Vargas court found the occupant’s compliance with the terms of probation to be indicative of his “rehabilitation” and therefore a critical factor in vacating the determination to terminate his family’s tenancy. Id. See also James v. New York City Housing Authority, 186 A.D.2d 498, 589 N.Y.S.2d 331 (1st -25- Dep’t 1992) (termination of tenancy “shocked the conscience” where tenant had since entered into counseling for indiscretion); Dickerson v. Popolizio, 168 A.D.2d 336, 562 N.Y.S.2d 658 (1st Dep’t 1990). As in the Vazquez and Wise cases cited above, Ms. Perez has made every effort to cure the condition that led to her Confession of Judgment by making a full restitution pursuant to the Restitution Stipulation agreed upon with the Housing Authority. Ver. Pet., ¶¶ 27-28, R. 290; see also R. 365- 380 (proof of payment). Consistent with the decisions cited above, the Appellate Division in its Appellate Division Order properly considered Ms. Perez’s efforts to make a full repayment of her debt owed to be a mitigating factor that supports vacating Appellant’s determination to terminate her tenancy. While the above-mentioned cases are analogous to the facts presented at bar, the cases cited by Appellant are inapposite. Resp. Br. at 23-24. First, the case Newton v. Municipal Housing Authority, 38 N.Y.2d 220 (1976) only discusses whether termination was supported by “substantial evidence” – an issue Petitioner here does not contest 4 – and the issue of whether the 4 Likewise, Petitioner is neither attempting to “relitigate the conduct underlying her criminal conviction” or the elements necessary to prove petit larceny, as erroneously contended by Appellant. See Appellant’s Br. at 28-29. To the contrary, dating back to her initial informal discussions with NYCHA Housing Managers, Petitioner has always fully and candidly admitted that she made the error of intentionally misrepresenting her -26- penalty was disproportionate to the offense was apparently not even in front of the court to be adjudicated. See also Waterside Redevelopment Co., L.P. v. Department of Hous. Preservation & Dev., 270 A.D.2d 87 (1st Dep’t 2000) (case cited by Appellant discussing only issue of “substantial evidence” and not proportionality of the penalty). In addition, the remaining cases cited by Appellant are inapposite because the mitigating factors that support Ms. Perez’s petition here were not present in those cases. Indeed, none of the cases cited by Appellant concerned mitigating factors such as the impact homelessness will have on children with disabilities or concerned any efforts by the petitioner to pay back the funds due to underreporting income. See Parker v. New York City Hous. Auth., 73 A.D.3d 632 (1st Dep’t 2010) (petitioner did not present any mitigating factors at probationary hearing and, unlike here, violated stipulation of settlement during probationary period); Bland v New York City Hous. Auth., 72 A.D.3d 528 (1st Dep’t 2010) (no discussion of effect on children with disabilities or petitioner’s repayment of debts owed to Housing Authority); Smith v. New York City Hous. Auth., 40 A.D.3d 235 (1st Dep’t 2007) (same); Waterside Redevelopment Co., L.P. v. Department income and has diligently been making an amends for this mistake by complying with the Restitution Stipulation. -27- of Hous. Preservation & Dev., 270 A.D.2d 87 (1st Dep’t 2000) (same); Cuevas v. Beacon Hous. Auth., 220 A.D.2d 179 (3d Dep’t 1996) (same); Sanchez v. Popolizio, 156 A.D.2d 210 (1st Dep’t 1989) (same). Appellant also makes a number of additional irrelevant and inaccurate arguments as a smokescreen to deflect from the fact that, due to her compliance with the Restitution Stipulation, the circumstances which led to her criminal conviction no longer exist and accordingly the Appellate Division properly vacated the Housing Authority’s termination determination. For instance, Appellant’s desperate argument that Ms. Perez’s compliance with the Restitution Stipulation would not result in a complete restitution of her indebtedness to the Housing Authority, because of Appellant’s claims that Ms. Perez owes the Housing Authority the sum of $27,000 rather than $20,000 (Appellant’s Br. at 30), is utterly meritless. Indeed, in the Restitution Stipulation, Ms. Perez, the Assistant District Attorney and Ms. Dillard of the Housing Authority expressly agreed that Ms. Perez must make monthly payments to cure her full “indebtedness in the sum of $20,000 to the New York City Housing Authority.” R. 364. The Housing Authority’s Investigator, Christopher France, likewise testified that Ms. Perez was making a “full restitution” in the amount of $20,000 to the -28- Housing Authority by her compliance with the Restitution Schedule. See R. 154-55 (transcript p. 14-15) (“Q: Are you aware that Ms. Perez has agreed to full restitution for any outstanding moneys that may have been owed to the Housing Authority? A: Yes … Yes. She had made arrangements, yes. She had signed a confession of judgment.”). 5 Appellant is likewise incorrect in its argument that the Appellate Division erred in holding that Ms. Perez “cured” her underreporting of income by complying with the Restitution Stipulation. Appellant’s Br. at p. 30. In fact, the Appellate courts have previously held that such an indiscretion can in fact be “cured” – to the extent of making the Housing Authority’s determination to terminate the offender’s tenancy shocking to the conscience. See, e.g., Vazquez, 57 A.D.3d 360 (vacating Housing Authority’s termination of tenancy determination because tenant “cured the conditions that led to the determination of nondesirability” where, as here, she paid a restitution of the money she owed after being convicted of petit 5 In addition, this Court should reject Appellant’s bluster calling into question the sworn statements of Ms. Perez in her Verified Petition, see Ver. Pet., ¶22, R 288-289, stating that, prior to entering the Restitution Stipulation, she had already entered into and had been complying with an oral agreement with NYCHA management, Mr. Emmeric and Ms. Read, to make a full restitution of rent owed. Tellingly, the Housing Authority – which is in exclusive possession of a complete file containing Ms. Perez’s monthly rent payments – has failed to submit any evidence whatsoever to rebut Ms. Perez’s sworn statements that she commenced paying an increased, prorated amount of monthly rent to make a full restitution of money owed immediately after her meeting with Ms. Perez and Mr. Emmeric and Ms. Read. -29- larceny); Wise, 85 A.D.3d. at 537 (vacating Housing Authority’s termination of tenancy determination because, by complying with a stipulation to repay the Housing Authority for monies owed, tenant “has made every effort to cure the violation” of underreporting her income). Finally, because Ms. Perez has consistently complied with the Restitution Stipulation, the only function that terminating Ms. Perez’s tenancy would serve at this time would be punitive. However, “[t]he function of an administrative sanction is not to punish [the tenant] … but rather to impose conditions that are designed to deter future offensive conduct … .” Perry v. Popolizio, N.Y.L.J. December 16, 1987, p. 11 c.4 (Sup. Ct. N.Y.), aff'd, 146 A.D. 2d 974 (1st Dep’t 1989). Because evicting Ms. Perez and her children from NYCHA housing at this point and rendering them homeless would serve no purpose other than being completely punitive, the Appellate Division was correct to reverse the Supreme Court Judgment and vacate the Hearing Officer’s determination to terminate the tenancy of Ms. Perez and her children. Id. 2. Ms. Perez’s Otherwise Unblemished Record and Model Tenancy are Mitigating Factors That Weigh Against Her Eviction The Appellate Division was correct to consider Ms. Perez’s longstanding history of being a model tenant, her lack of any other prior -30- criminal record and her history of being a positive member of her community in ruling that it would be a disproportionate penalty and shock one’s sense of fairness to evict her for one isolated digression. R 15. See also Peoples, 281 A.D.2d 591; Spand v. Franco, 242 A.D.2d 210 (1st Dep’t 1997). Appellant’s contention that consideration of such mitigating factors was inappropriate is contrary to well-settled law. Indeed, courts in the Appellate Division have routinely vacated or remanded for a lesser penalty decisions of the NYCHA to evict tenants who have lived in NYCHA housing for long periods of their lives, and who have shown a prior history of being a model tenant. See Williams v. Donovan, 60 A.D.3d 594 (1st Dep’t 2009) (holding it would be “shockingly disproportionate to the offense” to evict a tenant for underreporting income who has “has resided in the apartment for 28 years and has heretofore had an unblemished tenancy”); Holiday v. Franco, 268 A.D. 2d 138, 709 N.Y.S. 2d 523 (1st Dep’t 2000) (“Expulsion from her home is shocking to the conscience of the Court in view of the duration of petitioner’s tenancy [of 43 years]”); Turner v. Franco, 237 A.D. 2d 225 (1st Dep’t. 1997) (shocks the conscience to evict a tenant of 13 years); Milton v. Christian, 99 A.D.2d 984, 985 (1st Dep’t 1984) (shocks the judicial conscience to evict a tenant of 16 years). -31- Ms. Perez has been a resident of NYCHA housing for 39 years of her life and has lived in her present NYCHA apartment for almost 20 years. Ver. Pet., ¶18, R. 288. Her 23-year old daughter Tina, 19-year old son Brandon and 9-year old son Jacob have lived in Ms. Perez’s NYCHA housing apartment for their entire lives. Id. Other than the present charges – and unsubstantiated allegations made in Appellant’s Verified Answer for which Appellant tellingly fails to support with any documentary evidence (R. 42 at ¶11) – there is nothing in the record to show that Ms. Perez has been a problem-tenant over the 39 years that she has lived in NYCHA housing. Ver. Pet., ¶ 19., App. A31; see also R. 152-153 (transcript pp. 12-13) (testimony of Chief Investigator France that he is not aware of any other complaints or acts committed by Ms. Perez that would be deemed as offensive to her lease). To the contrary, except for the instant action, not a single complaint has ever even been alleged against Ms. Perez by the NYCHA Housing Manager. Ver. Pet., ¶¶ 19-20., R. 288. Courts in the Appellate Division have also consistently vacated such draconian eviction determinations against a tenant when “she has no prior criminal record, and her criminal conduct appears to have been an isolated aberration.” Vazquez, 57 A.D.3d 360 (1st Dep’t 2008) (citing Peoples v. -32- New York City Hous. Auth., 281 A.D.2d 259 (1st Dep’t 2001)); see also Gray v. Donovan, 58 A.D.3d 488 (1st Dep’t 2009) (shocks the conscience to evict a person who has lived in the apartment for many years “with no record of any prior offenses”); Martinez v. Franco, 272 A.D.2d 234 (1st Dep’t 2000) (vacating termination decision and citing petitioner’s “otherwise blemish-free record” as mitigating factor); Spand v. Franco, 242 A.D.2d 210 (1st Dep’t 1997) (shocks the conscience when petitioner “was involved in one isolated incident, has no other violations and has not presented any other problems to the Housing Authority”); Johnson v. New York City Hous. Auth., 266 A.D.2d 102 (1st Dep’t 1999) (the penalty of termination shocks our conscience “in view of petitioner’s otherwise unblemished record in public housing”); Williams v. Franco, 262 A.D.2d 45 (1st Dep’t 1999) (citing “past unblemished record” as mitigating factor in vacating termination decision). Ms. Perez has no prior criminal record and by all accounts has been a model citizen throughout her tenancy in NYCHA housing. In addition, she took full responsibility for her single, isolated indiscretion by immediately agreeing to make monthly payments, which she has since fully complied with, in an effort to make a full restitution. Ver. Pet. ¶ 27-28, R. 32; R. 364 (Confession of Judgment) and R. 265-280 (proof of payment). -33- In addition to not having any prior criminal record or any history of complaints filed against her, Mr. Perez has been a stellar contributor in the community. She has tirelessly raised three children as a single parent, two of whom have been diagnosed with disabilities, while maintaining a job for the past 12 years. Ver. Pet. ¶ 41, R. 295. As such, the determination of the NYCHA to terminate her tenancy and render her family homeless shocks the conscience and was properly annulled in the Appellate Division Order. 3. The Severe Adverse Consequences an Eviction Would Have on Her Children, Particularly Her Disabled, Nine- Year Old Son, Are Mitigating Factors That Weigh Against Their Eviction In ruling that evicting Ms. Perez from NYCHA public housing would be disproportionate to the offense, the Appellate Division properly considered it to be mitigating evidence that the eviction of Ms. Perez would have an adverse impact not only on her, but also on the family members whom she is responsible for supporting. R 16-18. Courts have repeatedly noted the severe impact eviction may have on an indigent family given the realities of the high costs of the housing market in New York City. See NCL Realty v. Sunga, N.Y.L.J. May 31, 1988, p.21 c.3 (App. Term, 2d & 11th); Lesser v. Park Realty, 527 N.Y.S.2d 787 (1st Dep’t 1988). Ms. Perez has sought to find other housing suitable for her and her children, but due to her meager salary at Flash Clinic, she has found that -34- she has been unable to afford any such apartments. See R. 159 (transcript p. 19). If she loses her employment, she certainly would not be able to afford an apartment for her family. Being evicted from NYCHA public housing would therefore result in Ms. Perez’s innocent children being rendered homeless. Appellant is flat- out wrong in its argument that the Appellate Division’s consideration of the impact of eviction on Ms. Perez’s children as a mitigating factor was inappropriate. Appellant’s Br. at 24-25. In Spand v. Franco, the Appellate Division of the First Department held that an eviction was a “disproportionate sanction” where the petitioner had been a tenant in public housing for only four years, but was a mother of three children. 242 A.D.2d 210 (1st Dep’t 1997). See also Vazquez, 57 A.D.3d 360 (caring for family member is a mitigating circumstances in an eviction proceeding). The consideration of how an eviction will affect innocent family members is particularly appropriate where, as here, the petitioner lives with and is responsible for taking care of a child with disabilities. See, e.g., Wise, 85 A.D.3d 571 (vacating eviction determination because termination of lease of tenant with three minor children, one of whom is disabled, is shocking to the conscience even though tenant failed to report employment income on -35- her affidavits of income); Davis v. New York City Dept. of Hous. Preserv. & Dev., 58 A.D.3d 418 (1st Dep’t 2009) (holding penalty that would result in homelessness of tenant is disproportionate to the offense because tenant lives wither her three children, one of whom is disabled); Holiday v. Franco, 268 A.D.2d 138, 142 (1st Dep’t 2000) (vacating eviction determination where mitigating factor is that household included petitioner’s disabled daughter); Williams v. Franco, 262 A.D.2d 45 (1st Dep’t 1999) (vacating eviction where household with disabled persons is mitigating factor); Johnson v. New York City Hous. Auth., 266 A.D.2d 102 (1st Dep’t 1999) (penalty of termination shocks the conscience where tenant with disabled son is responsible for caring for six children); Stroman v. Franco, 253 A.D.2d 398, 399 (1st Dep’t 1998) (holding penalty of termination of tenancy to be unduly harsh in part because it would result in eviction of entire family, including petitioner’s disabled daughter). Here, evicting Ms. Perez would have uniquely severe consequences on her children. Ms. Perez’s 19-year old son Brandon lives with Ms. Perez and is a student in good standing at the Graham High School. Ver. Pet. ¶34, R. 292; R. 404 (letter from Graham High School). As evidenced by a letter written by Graham High School’s Assistant Intake and Discharge Coordinator, “Brandon is a student with a disability -36- and requires special instruction in an environment with a smaller student-to- teacher ratio and minimal distractions in order to progress in achieving the learning standards.” Id. Evicting Ms. Perez would result in Brandon becoming homeless, which would severely disrupt his educational pursuits and possibly force him to live too far away to commute to the Graham School, thus causing him to disenroll. Disenrolling from the Graham School would prevent Brandon from receiving the special attention that he requires. Most importantly, however, it is critical that Ms. Perez’s nine-year old son Jacob remain in NYCHA housing. Jacob has been diagnosed with ADHD. Due to his condition, Jacob experiences severe emotional vulnerability, which on occasion results in violent outbursts. See Ver. Pet. ¶ 35, R. 292-293. Fortunately, Jacob has attended DREAM Charter since December of 2008, where he has been able to receive an individualized educational plan as mandated by New York State. As a result of the individualized approach of DREAM Charter, Jacob has made significant progress. Id.; see also R. 408 (letter from DREAM Charter School). However, evicting Jacob’s family from NYCHA housing would have a severe adverse effect on Jacob’s progress. In addition to putting a halt to the progress that Jacob has made at DREAM Charter, leaving NYCHA public housing and becoming homeless -37- would particularly have an extreme negative impact on Jacob’s development for a number of other reasons. As a child diagnosed with ADHD, Jacob has strong negative reactions to changes in his life, which include intense depression. Ver. Pet. ¶ 37, R. 293. Thus, suddenly becoming homeless after living his entire life in NYCHA housing certainly would increase Jacob’s feelings of sadness and have a negative impact on his development. In addition, Jacob has suffered from seizures on three separate occasions. Indeed, in March of 2006 Jacob was admitted to the Metropolitan Hospital Center for a full week of examinations due to a seizure. Metropolitan Hospital Center is conveniently located across the street from Ms. Perez and Jacob’s current NYCHA housing address, which provides Ms. Perez with comfort that Jacob would be able to reach a hospital in a manner of minutes in the event another seizure occurs. Ver. Pet ¶ 38, A-35-36. Another benefit of Jacob’s current situation is that the nurse station located in DREAM Charter is affiliated with Mount Sinai Hospital. See Ver. Pet. ¶ 38, R. 293-294; see also R. 410 (website). Thus, if Jacob were to unexpectedly suffer from a seizure while attending school, DREAM Charter’s nursing station would be fully prepared and equipped to immediately send him to Mount Sinai for treatment. -38- In Turner v. Franco, the Appellate Division, First Department vacated a Hearing Officer’s determination of termination of tenancy under similar circumstances because the penalty of eviction shocked the court’s sense of fairness. 237 A.D. 2d 225 (1st Dep’t 1997). The court based its holding on the fact that the tenant suffered from chronic schizophrenia that rendered him delusional and unable to live in a homeless shelter or other group environment. Id. In much the same way, Ms. Perez’s eviction would shock one’s sense of fairness because if moved to a homeless shelter, Jacob would be denied the advantage of quick access to a hospital, whether he is at home or at school, when his next sudden seizure occurs. Like the schizophrenic tenant in Turner, Ms. Perez and Jacob need stability in their life to effectively address Jacob’s physical and mental illnesses. Moreover, Appellant’s argument that taking the extreme action of evicting Ms. Perez and her disabled children, and likely rendering them homeless, is the only means of “deterring” individuals from acting inappropriately, simply defies logic. Appellant’s Br. at 30-32. The fact that Ms. Perez now must disclose the fact that she pled guilty to petit larceny on -39- future job, loan and housing applications is alone sufficient to deter other tenants from misrepresenting income. 6 Finally, Ms. Perez’s eviction would likely result in the crippling consequence of Ms. Perez losing her employment. This, in turn, would result in severely negative consequences for Ms. Perez’s children. As stated above, Ms. Perez is employed by a company, Flash Clinic, located on 164 West 25th Street, as an assistant bookkeeper for Accounts Receivables. Ver. Pet. ¶ 41, R. 295. It is possible that the homeless shelter where Ms. Perez would have to live would be so far from Flash Clinic that it would be impossible for Ms. Perez to complete work by 2:30 p.m., as allowed by her supervisor, and then return to the homeless shelter in time for Jacob’s return from school. Id. Thus, Ms. Perez may not be able to continue working at Flash Clinic if she is evicted. Consequently, she would lose all income and be left unable as a single parent to financially support her three children. Being evicted from NYCHA public housing would therefore result 6 Appellant’s citation to Sanchez v. Popolizio, 156 A.D.2d 210 (1st Dep’t 1989) does not support its argument that other tenants would not be properly deterred from underreporting income unless Ms. Perez and her family are made homeless. Resp. Br. at 31-32. Significantly, the Sanchez court did not even mention the issue of deterrence. In any event, the Sanchez court expressly conceded that a termination decision based on misrepresentation of income may in fact be inappropriate and “set aside” if, in light of the particular circumstances, the penalty is disproportionate to the offense. Id. -40- in Ms. Perez and her family becoming homeless, which as discussed above, would inflict catastrophic harm upon Ms. Perez and her family. Accordingly, termination of Ms. Perez’s tenancy would be a completely disproportionate penalty to her offense of underpaying her rent. The Appellate Division Order should therefore be affirmed. -41- CONCLUSION For the reasons set forth herein, Petition respectfully submits that this Court should affirm the order of the Appellate Division, First Department to annul the determination made by Appellant to terminate Petitioner’s tenancy. Dated: New York, New York July 11, 2012 By: /s/ Marc Sackin Marc Sackin, Esq. 4108 Auburn Drive Royal Oak, MI 48073 t: (248) 990-8099 f: (516) 868-0241 Attorneys for Petitioner-Appellant TO: New York City Housing Authority Attn: Seth E. Kramer 250 Broadway, 9 th Floor New York, NY 10007 -42-