After a hearing, the court found, inter alia, that the affidavit obtained as a result of an interview of the Department of Housing Preservation and Development (HPD) superintendent by plaintiff's investigator included fabricated material. Although the proof of such alleged fabrication could have been stronger, we see no reason to disturb the hearing court's finding. As to proof, the best that the superintendent could muster, when asked if he had made the statements contained in the disputed portion of the affidavit was, "I don't remember saying that", a response that does not preclude the fact that he indeed did make the statement in question. He repeatedly answered in that vein when asked similar questions. Nor was it improper under Code of Professional Responsibility DR 7-104 (A) (1) ( 22 NYCRR 1200.35 [a] [1]) for plaintiff's investigator to conduct an interview, ex parte, of the superintendent, a low-level HPD employee. ( Niesig v. Team I, 76 N.Y.2d 363.)
Under the unique circumstances of this case, the sanction of dismissal was unwarranted and we impose a lesser sanction, as indicated.
Concur — Sullivan, J. P., Rosenberger, Nardelli and Rubin, JJ.