IN RE: Application of Richard LOHMANN (2002)

Determination of respondent New York City Housing Authority, dated February 2, 2000, which terminated petitioner's public housing tenancy on grounds of non-desirability upon a finding that petitioner allowed excessive noise to emanate from the subject apartment, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Walter Tolub, J.], entered December 22, 2000), dismissed, without costs.

Substantial evidence (see, 300 Gramatan Ave. Assocs. v. New York State Div. of Human Rights, 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183), comprised of the duly credited testimony of four long-term tenants from apartments neighboring that of petitioner, supported the determination that petitioner's continued tenancy in the project was non-desirable.   The testimony of petitioner's neighbors established that excessive and disturbing noise from petitioner's apartment had persisted over a six to seven-year period and, although a quiet period of approximately eleven months intervened during a portion of the extended administrative hearing, the loud noises thereafter resumed and continued regularly, substantially disrupting the lives of the neighboring tenants.   Petitioner's testimony, that the noise came from other neighboring apartments, was rejected by the Hearing Officer, and there exists no basis to disturb this credibility finding or the Hearing Officer's other assessments of witness credibility (see, Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443, 522 N.Y.S.2d 478, 517 N.E.2d 193).

Under the circumstances presented herein, termination of petitioner's tenancy was not an abuse of discretion as a matter of law (i.e., shocking to one's sense of fairness)(see, Matter of Featherstone v. Franco, 95 N.Y.2d 550, 554, 720 N.Y.S.2d 93, 742 N.E.2d 607).

We have considered petitioner's remaining arguments and find them unavailing.