The application by petitioner for an order pursuant to C.P.L.R. Article 78, reversing respondent's determination to terminate petitioner's tenancy, is denied and the petition is dismissed.

Petitioner asserts that respondent's determination to terminate her tenancy should be reversed. She claims that she and her family have resided at 1165 East 229th Street, Apartment 12B, Bronx, New York, 10466 for approximately twenty-six (26) years. Petitioner asserts that on December 19, 2009, officers from the New York Police Department (NYPD) entered the subject apartment pursuant to a search warrant. The search warrant specifically authorized the NYPD to seize any controlled substances found in the apartment, in particular any heroin or heroin paraphernalia. Petitioner contends that upon the conclusion of the search, the NYPD did not recover any controlled substances whatsoever. The NYPD did, however, recover two firearms which were found inside a sealed fanny pack behind a large television wall unit. She claims that she was the only adult present at the time of the search and, thus, she was the only person subject to arrest at that time.

Petitioner further asserts that respondent's determination to terminate her tenancy, violates her due process rights because that decision is predicated on uncharged conduct of alleged illegal activity that was not contained in the notice of termination and because no heroin was found in her apartment. Petitioner next contends that respondent's determination should be reversed for two reasons: first, because she allegedly had no actual knowledge of the two firearms found in her apartment and second, because the firearms actually belonged to her son. [*2]Accordingly, petitioner contends that since respondent failed to offer evidence to substantiate its claim that the firearms belonged to her, respondent's determination was lacking in evidentiary support and should be reversed and her tenancy reinstated.

Respondent opposes the application and submits a verified answer denying petitioner's claims. Respondent argues that the petition should be dismissed because the hearing officer's decision to terminate petitioner's tenancy was warranted based on the weapons charge alone, which was a sufficient basis for termination. Respondent argues that the Housing Authority was created to provide decent and safe housing for low-income families in New York City and illegal firearms being stored in this apartment puts people in this residential community in grave danger.

Respondent contends that the determination to terminate petitioner's tenancy was warranted based on the firearms charge alone. Therefore, petitioner's argument regarding the controlled substance claim is immaterial. First, petitioner admits to the two firearms being found in her apartment. Second, the two firearms were found to be loaded and operable. Lastly, petitioner's excuse that the firearms belonged to her son is irrelevant. Respondent cites to case law wherein courts have upheld Housing Authority determinations to terminate a tenancy, even though the illegal firearm found in the apartment belonged to the tenant s guest or visitor. See Satterwhite v. Hernandez, 16 AD3d 131 (1st Dept 2005); Jackson v. Hernandez, 63 AD3d 64 (1st Dept 2009). Therefore, since the weapons were found in petitioner's apartment, her tenancy can be terminated. Furthermore, petitioner has actually pled guilty and was convicted for criminal possession of a weapon in the fourth degree. That conviction precludes and estops petitioner from re-litigating the issue in a subsequent civil action such as this.

The United States Supreme Court has held that an "innocent" tenant can be evicted for the illegal activities of others under his or her control, especially when that criminal activity threatens the health and safety of other residents. Department of Hous. & Urban Dev. v. Rucker, 535 U.S. 125 (2002). Therefore, respondent contends that petitioner's application should be dismissed.

In order to overturn a judgment by an administrative agency such as the New York City Housing Authority, the judgment must shock the conscience and be arbitrary as to its proportionality to the offense. The sanction must constitute an abuse of discretion as a matter of law for it to be reversed. Pell v. Board of Education, 34 NY2d 222, 237 (1934).

As explained by the Appellate Division, " the duty of Special Term, despite its real and compassionate concern, had been completed, when it satisfied itself that there was a rational basis for the administrative determination." Montgomery v. New York City Hous. Auth., 56 AD2d 778, 778 (1st Dept 1977).

The record shows that the NYPD entered petitioner's apartment pursuant to a search warrant and recovered two illegal firearms. The record also shows petitioner pled guilty to criminal possession of a weapon in the fourth degree. Petitioner's signed lease agreement obligated her to not engage in "criminal activity that threatens the health, safety, or right to [*3]peaceful enjoyment of the Development by other residents".

Courts have upheld Housing Authority determinations terminating petitioner's tenancy supported by substantial evidence where police recovered operable firearms from petitioner's apartment. Diaz v. Hernandez, 66 AD3d 525 (1st Dept 2009). Courts have also estopped a party from re-litigating an issue that has already led to a criminal conviction. Launders v. Steinberg, 39A.D.3d 57, 64 (1st Dept 2007).

Accordingly, it is hereby,

ADJUDGED, that the petition is denied and the proceeding is dismissed, without costs and disbursement to respondent, New York City Housing Authority.

Dated: July 5, 2011

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J.S.C.