Pro se petitioner, Milinaire Davis ("petitioner"), a tenant in the Walt Whitman Houses, a public housing complex, brings this CPLR Article 78 proceeding challenging the determination of respondent New York City Housing Authority ("NYCHA") terminating petitioner's tenancy. Respondent opposes the petition. For the reasons that follow, the petition is denied and the proceeding is dismissed.

In or about September 2005, petitioner became the tenant of record for apartment 5E, located at 106 Carlton Avenue, Brooklyn, New York (the "apartment"), in the housing complex known as the Walt Whitman Houses (Verified Answer ¶ 18). In June 2007, after discovering that petitioner had placed an advertisement on Craigslist offering to sublet the apartment and learning that petitioner had permitted unauthorized individuals to reside in her apartment, NYCHA charged petitioner with transferring or attempting to transfer possession of the apartment to another person without NYCHA's permission or consent. Petitioner was offered probation, which she refused, and the matter proceeded to a hearing. The Hearing Officer sustained the charges and recommended the disposition of termination. NYCHA adopted the recommendation. Petitioner commenced an Article 78 proceeding challenging the determination, which proceeding was assigned to Justice Marilyn Shafer of this court (Milinaire Davis v New York City Hous. Auth., Index No. 400057/08). In her decision, Justice Shafer noted that petitioner admitted in her petition to having improperly shared [*2]her apartment, while having denied doing so at the administrative hearing. Nevertheless, Justice Shafer granted the petition and remanded the matter to the NYCHA for further proceedings, finding that the penalty of termination of Davis' tenancy was too harsh because Davis had admitted her wrongdoing and apologized and further that termination of Davis' tenancy would likely have the effect of rendering Davis and her infant son homeless. On June 24, 2009, a Hearing Officer determined that petitioner should be placed on probation for one (1) year "to ensure compliance with all tenancy obligations" (Verified Answer, ¶ 21, Ex. "F"). The NYCHA adopted the disposition of probation on July 8, 2009.

On August 25, 2009, Ms. Rose Celestin reported to NYCHA management that she had been subletting a room in petitioner's apartment and that Davis had thrown her out of the apartment (id. Exhibit "G"). By notice dated December 8, 2009, the NYCHA charged petitioner with violation of her probation, transferring or attempting to transfer her apartment to another person without NYCHA's permission or consent, and breach of NYCHA's rules and regulations for failing to occupy her apartment, subletting her apartment, and permitting individuals to occupy her apartment without obtaining NYCHA's consent. The notice advised petitioner that she was entitled to be represented at the hearing by counsel or other representative and that the determination after the hearing could result in her eviction (id., Exhibit "H").

On January 29, 2010, a hearing was conducted before Hearing Officer Ester Tomicic Hines at which petitioner appeared without counsel or other representative and advised that she would be representing herself (id., Exhibit "J", Hearing Transcript [Tr.] at 6). At the commencement of the hearing, petitioner admitted to one of the five charges proffered against her, namely, that she had "permitted an unauthorized occupant or occupants, to take up residence in [her] apartment" without obtaining NYCHA's prior written consent.

NYCHA Housing Assistant, Roland Night, assigned to the Walt Whitman Houses, testified regarding Ms. Celestin's visit to the management office stating that she advised management that she was paying petitioner to stay in a room in petitioner's apartment. Ms. Celestin said that her father would send her money orders which she would cash and then she would give the cash to petitioner. Ms. Celestin further advised that petitioner had put her out of the apartment and was not permitting Ms. Celestin to retrieve her clothes (Tr. at 30-31, 33-36). Ms. Celestin submitted several documents to the management office, including documents from public assistance addressed to her at petitioner's apartment address, and an interim driver's license and official driver's license both bearing the address of petitioner's apartment. Ms. Celestin also provided a detailed written statement advising that she had been subletting a room in petitioner's apartment from January 2009 through August 2009, as well as a copy of a cashed money order receipt (id. Exhibits "K", "L"). Mr. Night testified that petitioner's monthly rent was $166.00 (Tr. at 36; Exhibit "M").

Ms. Celestin testified that after moving to Brooklyn from Arkansas to attend college in January 2009, she found a listing on Craigslist advertising a room to rent at a monthly fee of $500.00. She called the number listed and thereafter met petitioner's baby's father, Don Cherry, who showed her the room in petitioner's apartment (Tr. at 61-63). Celestin took the room after negotiating a reduction in the "rent" to $400.00 for the first two months, as she was unemployed, and $500.00 a month thereafter (Tr. at 63). Celestin paid petitioner cash every month as petitioner had told her that she would only accept cash. Petitioner, her son, and her baby's father lived in one room in the apartment and Celestin rented the other room. At first petitioner would not permit Celestin [*3]to use the mailbox and receive mail at the apartment address, as she revealed that had gotten into trouble before for renting a room out, but she later relented, gave Celestin a mailbox key, and allowed her to use it (Tr. at 94). The relationship between Celestin and petitioner deteriorated when Celestin lost her job, a money order sent by her father was lost in the mail, and she was late paying the rent (Tr. 66-67). Celestin called the police after petitioner kicked her out of the apartment. When they responded to the scene, the police suggested that Celestin contact NYCHA management and advise them that she had been subletting a room. The police also advised petitioner that her action in subletting a room in her apartment was illegal. Celestin further testified that she visited the NYCHA management office and provided documentation that she had been living in petitioner's apartment. Mr. Night and two other NYCHA employees escorted Celestin to the apartment to confirm that she had been living there.

Petitioner testified that Celestin was an acquaintance, whom she met through unnamed mutual friends and whom she allowed to stay in her apartment because Celestin had no place to stay. Petitioner claimed that she had told Celestin that the arrangement was temporary (Tr. 85, 87, 91-92). While acknowledging that Celestin told her she would give her money when she was able, petitioner claimed that she never actually received any money from her (Tr. 85, 98). Petitioner contended that the situation between her and Celestin became tense because petitioner was not comfortable with the fact that Celestin was still staying at the apartment and she had been proposing different things that petitioner claimed she did not want to consider (Tr. 85). Petitioner admitted that she had been in trouble before for allowing people to stay with her (Tr. 89).

In a decision dated February 18, 2010, the Hearing Officer sustained four of the five charges and recommended termination of petitioner's tenancy (verified Anser, Exhibit "N"). In reaching this determination, the Hearing Officer noted that:

"It appears that several months after receiving a favorable ruling

in her Article 78 proceeding the tenant once again advertised a

room for rent on Craigslist and sublet a room in her apartment to

Ms. Celestin. The tenant's boldness is remarkable and it is apparent

from her conduct that she believes she can continue to profit

personally from her subsidized public housing apartment."

(Id., Exhibit "N" at 4).The Hearing Officer further noted that petitioner took the "calculated precautions" of only accepting cash payments from Ms. Celestin and not permitting Ms. Celestin initially to use the mailbox "to minimize her risk of detection by NYCHA" (id. at 3). On March 3, 2010, NYCHA approved the decision and recommendation of the Hearing Officer terminating petitioner's tenancy.

Davis then initiated this Article 78 proceeding. In her petition, petitioner admits that she allowed a person to stay with her in her apartment and acknowledges that this action was wrong. She contends that she took this action in an effort to support her son because the baby's father was not providing consistent financial assistance and she has been unable to maintain consistent employment. In an apparent effort at mitigation, petitioner cites to her efforts in obtain training as a community chef so that she might be gainfully employed, recognizes "the previous favor" that she had been granted in being placed on probation rather than evicted, and states that she understands the consequences if she engages in such behavior in the future (Verified Petition). [*4]

In response, NYCHA argues that the challenged determination is supported by substantial evidence, rational and in accord with NYCHA's policies and procedures and applicable law. Respondent also contends that despite the substantial evidence issue brought up for review in this proceeding, transfer to the Appellate Division pursuant to CPLR § 7803 (4) is not required as petitioner admits to her wrongdoing and does not challenge the factual findings of the Hearing Officer. Rather, petitioner simply seeks to have the penalty of termination of her tenancy vacated.

Initially, the court agrees with NYCHA's position that because petitioner is not disputing the facts, raises no issue of substantial evidence and only questions the penalty, a transfer of this proceeding to the Appellate Division pursuant to CPLR § 7803 (4) is not required (see Matter of Rosenkrantz v McMickens, 131 AD2d 389, 390 [1st Dept 1987]; Matter of Duboff Elec. v Goldin, Inc., 95 AD2d 666 [1st Dept 1983]). At issue here is whether the penalty imposed is so disproportionate to the offense as to be arbitrary and capricious (Matter of Pell v Board of Educ., 34 NY2d 222, 231 [1974]).

The court's role in reviewing a decision of an administrative agency, such as the NYCHA, is limited, with the standard of review being whether the administrative determination was made in violation of a lawful procedure, was affected by an error of law or was arbitrary and capricious and without a rational basis in the administrative record (see, CPLR 7803; Matter of Pell v Board of Educ., 34 NY2d at 231). The court may not conduct a de novo review of the facts and circumstances or substitute its own judgment for that of the administrative agency (see, Greystone Management Corp. v Conciliation and Appeals Bd., 94 AD2d 614, 616 [1st Dept 1983], affd. 62 NY2d 763 [1984]). Rather, the court should review the record as a whole to determine whether a rational basis exists to support the findings of the administrative agency (see, Nelson v Roberts, 304 AD2d 20 [1st Dept 2003]). Moreover, where the administrative determination requires an evaluation of the facts within an area of the administrative body's expertise, the determination must be accorded great weight and judicial deference (see, Flacke v Onondaga Landfill Systems, Inc., 69 NY2d 335, 363 [1987]). An action is arbitrary and capricious when the action is taken "without regard to the facts" (Pell v Board of Education, supra).

Here, petitioner, even after being placed on probation for having allowed someone to stay at her apartment without obtaining the permission and consent of NYCHA, immediately engaged in exactly the same conduct. This evidences a clear pattern of misconduct and petitioner's continuing belief that her circumstances justify her repeated violation of the terms of her public housing tenancy. Thus, despite petitioner's promise that she will not engage in such behavior again, such assurance is not particularly reliable given petitioner's past conduct. In light of petitioner's acknowledged misconduct and notwithstanding the hardship to petitioner and her infant son resulting from termination, it cannot be said that the termination of her tenancy is shocking to one's sense of fairness (see Bland v New York City Hous. Auth., 72 AD3d 528 [1st Dept 2010]; Matter of Smith v

New York City Hous. Auth., 40 AD3d 235, 236 [1st Dept 2007], lv denied 9 NY3d 816 [2007]).

ADJUDGED that the petition seeking to reverse and annul NYCHA's determination is denied and the proceeding is dismissed.

This constitutes the decision and judgment of the court.

[*5]DATED:

E N T E R,

______________________________

O. PETER SHERWOOD

J.S.C.