IN RE: Delores TUCKER

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Supreme Court, Appellate Division, First Department, New York.

IN RE: Delores TUCKER, Petitioner, v. NEW YORK CITY HOUSING AUTHORITY, Albany Houses, Respondent-Respondent.

Decided: July 14, 2009

MAZZARELLI, J.P., SAXE, NARDELLI, RENWICK, FREEDMAN, JJ. Harriette N. Boxer, New York, petitioner. Sonya M. Kaloyanides, New York (Byron S. Menegakis of counsel), for respondent.

Determination of respondent New York City Housing Authority, dated February 13, 2008, terminating petitioner's tenancy on the ground that she failed to report household income, unanimously modified, on the law, to vacate the penalty of termination and 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 the Supreme Court, New York County [Kibbie F. Payne, J.], entered April 28, 2008), is otherwise disposed of by confirming the remainder of the determination, without costs.

Respondent's finding that petitioner violated its rules by failing to report household income is supported by substantial evidence and has a rational basis in the record (see Matter of Purdy v. Kreisberg, 47 N.Y.2d 354, 358, 418 N.Y.S.2d 329, 391 N.E.2d 1307 [1979] ).   However, while petitioner's documented and unchallenged mental disability did not excuse her actions, it has great bearing on the appropriateness of the penalty.   Petitioner established that she suffers from bipolar disorder and borderline personality disorder.   Her psychotherapist stated that these conditions ordinarily create “insurmountable problems” for people with those diagnoses.   Petitioner further demonstrated that her score on a Global Assessment and Functioning analysis performed by her psychiatrist is predictive of an inability to function in society without “significant limitations.”   We further note that petitioner's 27-year tenancy in the subject building is otherwise unblemished and that she has taken steps to pay the rent that she would have been required to pay had she not misrepresented her household income.   Under the circumstances, the penalty of petitioner's eviction from public housing, where she has lived all her life, “shocks our sense of fairness” (Matter of Turner v. Franco, 237 A.D.2d 225, 225, 655 N.Y.S.2d 935 [1997] ).