Ropes & Gray, LLP, New York (John N. McClain, III of counsel), for petitioner. Zachary W. Carter, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondent.
Ropes & Gray, LLP, New York (John N. McClain, III of counsel), for petitioner.
Zachary W. Carter, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondent.
Determination of respondent, dated October 24, 2014, which terminated petitioner's Section 8 subsidy on the ground that he misrepresented his family composition, unanimously modified, on the law, to vacate the penalty of termination, and to remand the matter to respondent for imposition of a lesser penalty, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Alice Schlesinger, J.], entered April 17, 2015), otherwise disposed of by confirming the remainder of the determination, without costs.
The finding that petitioner misrepresented the composition of his household is supported by substantial evidence, which included petitioner's testimony (see generally 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180–181, 408 N.Y.S.2d 54, 379 N.E.2d 1183  ). However, the penalty of termination of petitioner's Section 8 subsidy is disproportionate to the offense under the circumstances. Although petitioner acknowledged that his granddaughter did not reside with him at least 51% of the time, his granddaughter did stay with him weekends and when her terminally ill mother was in the hospital. Petitioner is 71 years old, has decreased mobility, has household income that is insufficient to cover his unsubsidized rent, had no prior incidents, and there was no evidence of an intent to defraud respondent (see e.g. Matter of Bauman v. New York State Div. of Hous. & Community Renewal, 101 A.D.3d 633, 957 N.Y.S.2d 318 [1st Dept.2012] ; Matter of Chierchia v. New York City Hous. Auth., 92 A.D.3d 587, 938 N.Y.S.2d 559 [1st Dept.2012] ; Matter of Williams v. Donovan, 60 A.D.3d 594, 874 N.Y.S.2d 910 [1st Dept.2009] ; Matter of Gray v. Donovan, 58 A.D.3d 488, 870 N.Y.S.2d 347 [1st Dept.2009] ).
On remand, respondent should calculate the amount of excess subsidy received by petitioner, if any (see Williams, at 595, 874 N.Y.S.2d 910 ).
SWEENY, J.P., RENWICK, ANDRIAS, KAPNICK, KAHN, JJ., concur.