IN RE APPLICATION OF MARTINEZ v. FRANCO

Respondent's determination that petitioner violated a proviso requiring the "continued absence" of her daughter from her apartment and, in so doing, violated the terms of the general probation upon which her tenancy had been placed for the daughter's misconduct, was supported by substantial evidence (see, 300 Gramatan Ave. Assocs. v. New York State Div. Of Human Rights, 45 N.Y.2d 176, 180). However, under the unique circumstances presented, which include the fact that petitioner has had an otherwise blemish-free record during her twelve-year tenure as a Housing Authority tenant and cares for her four infant grandchildren who reside with her, we find the penalty of terminating petitioner's tenancy shocking to our sense of fairness. In this regard, we point out that there is a paucity of information in the record regarding the underlying circumstances that led to petitioner's probation and the requirement that her daughter remain absent from her apartment. Accordingly, we remand the matter for imposition of a lesser penalty (see, Matter of Williams v. Franco, 262 A.D.2d 45, 691 N.Y.S.2d 462; Matter of Powell v. Franco, 257 A.D.2d 509).

While the circumstances of this case necessitate a remand, we do so reluctantly because of the strong policy reasons supporting respondent's efforts to eliminate drugs from public housing. For this reason, were petitioner to again violate the conditions of her tenancy so as to undermine respondent's anti-drug efforts, it is doubtful that she would be entitled to any judicial consideration. We note that there is rarely a basis to excuse a violation of a continued absence proviso when the necessity for such a proviso arises from an offense involving drugs.

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.