IN RE: Application of Ivette VARGAS

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

IN RE: Application of Ivette VARGAS, Petitioner, v. Ruben FRANCO, etc., et al., Respondents. For a Judgment, etc.

Decided: April 24, 1997

Before MILONAS, J.P., and ELLERIN, TOM and MAZZARELLI, JJ. William J. Hine, for Petitioner. Lawrence J. Roth, for Respondents.

Determination of respondent New York City Housing Authority, dated July 12, 1995, which terminated petitioner's tenancy on the ground of nondesirability, unanimously modified, on the facts, to vacate the penalty of termination, the matter remanded 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 [Herman Cahn, J.], entered on or about April 16, 1996), is otherwise disposed of by confirming the remainder of the determination, without costs.

 Substantial evidence, including petitioner's admissions of all the charges and her son's admission that he defaced certain buildings in the project with graffiti on ten separate occasions, supported respondent's determination of nondesirability and breach of the tenant rules and regulations.   However, the penalty of termination shocks our sense of fairness (Matter of Pell v. Board of Education, 34 N.Y.2d 222, 233, 356 N.Y.S.2d 833, 313 N.E.2d 321;  Matter of Winn v. Brown, 226 A.D.2d 191, 640 N.Y.S.2d 527).   Although the vandalism committed by petitioner's son was serious, it took place during an isolated three-month period in an otherwise unblemished tenancy, and petitioner's son has since rehabilitated himself (see, Matter of Feliciano v. Christian, 69 A.D.2d 796, 415 N.Y.S.2d 418).  After petitioner's son was arrested for his acts, he fully cooperated with the police, was placed on probation by the Family Court, complied with the terms of probation, successfully completed community service, and has not been arrested subsequent to this incident.   We also note that extensive evidence submitted since the hearing further demonstrates the continued rehabilitation of petitioner's son, which should be considered by respondent upon remand.   Respondent should also consider conditioning the continued tenancy upon nonrecurrence of the complained of conduct.  (Matter of Cheek v. Christian, 67 A.D.2d 887, 413 N.Y.S.2d 708;  Matter of Feliciano v. Christian, supra ).