Walker v. Franco

—Determination of respondent Ruben Franco, as Chair of the New York City Housing Authority, dated February 23, 1998, which terminated petitioner’s tenancy on the ground of nondesirability, confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, Bronx County [George Friedman, J.], entered on or about October 29, 1998) dismissed, without costs. During a search of petitioner’s apartment, which was conducted pursuant to a no-knock search warrant, 151 vials of crack cocaine, packaged and ready for sale, a beeper, and a number of plastic bags and empty vials were thrown from a window of the apartment. After entering the apartment, the police discovered clear plastic vials with various tops and several cell phones. A triple-beam scale was also seized from a closet. At the hearing, petitioner admitted that, prior to the search, she knew the triple-beam scale was in her apartment. She claimed, however, that she was ignorant of any drug activity taking place in her apartment and sought to attribute any such activity to either her son, who was living with her, or to a man named Edward Ely, who was the father of her grandchildren. Ely, she claimed, had come to her apartment just before the warrant was executed to get the telephone number of her daughter so that he could see his children. Based upon this evidence, the Hearing Officer determined that petitioner’s tenancy should be terminated on grounds of nondesirability. We conclude that this determination was entirely appropriate (see, Matter of Burgess v Popolizio, 169 AD2d 831). The evidence of a substantial amount of ready-to-sell crack cocaine and marketing paraphernalia was sufficient to support respondent’s determination of nondesirability notwithstanding petitioner’s claim that she did not know that her son or Edward Ely were involved in drug activity in her apartment. The Hearing Officer found petitioner’s claims of ignorance not credible and we find no basis to disturb that credibility determination. Moreover, petitioner’s conceded awareness of the triple-beam scale, an item which is typically used in the drug trade, belies her claim of ignorance. [628] We point out that judicial review of these administrative proceedings is limited to determining whether there exists “substantial evidence” to support the determination (300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 179). The proof must be more than “seeming or imaginary” (id., at 180). This is a minimal burden of proof on the agency to whose discretion the day-to-day operation of public housing has been committed by law. The decision need not be the best which could have been made and need not be free from flaws — it must only have a rational basis (see, Matter of Jennings v New York State Off. of Mental Health, 90 NY2d 227, 239). Credibility of witnesses is resolved by the Hearing Officer (see, Matter of Woody v Franco, 260 AD2d 186, lv denied 94 NY2d 754). Notwithstanding this, the dissent concludes that termination of petitioner’s tenancy was improper because petitioner purportedly did not have proper notice of the proceedings and was not granted an adjournment to obtain counsel. This, it is claimed, deprived petitioner of due process. We cannot agree. On this appeal, petitioner has ultimately pursued only one issue, namely, whether her lease can be terminated for the wrongdoing of her adult son who allegedly moved before the hearing. While her reply brief makes a vague and fleeting reference to the words “Due Process,” this reference cannot, even by the most tortured interpretation, be construed as advancing a claim that she lacked proper notice of the proceedings or that she was not given an opportunity to obtain counsel. We, therefore, find it anomalous that the dissent advances an argument, sua sponte, that petitioner herself did not believe merited appellate attention. Finally, we note that petitioner’s claim that she was unaware of the drug activity taking place in her apartment strains all bounds of credulity since petitioner was placed on probation before as a result of her son’s drug involvement. In any event, all residents of public housing have a right to live in a safe, drug-free environment, which right is not diminished by the length of petitioner’s tenancy, or her claim of blind ignorance. Concur — Nardelli, J. P., Buckley and Friedman, JJ.