Rozier v. Christian , 74 A.D.2d 875 ( 1980 )

In a proceeding pursuant to CPLR article 78 to review respondent’s determination, made after a hearing, to terminate petitioners’ tenancy in a public housing project on the ground of nondesirability, petitioners appeal from a judgment of the Supreme Court, Kings County, dated May 7, 1979, which denied the application and dismissed the petition. Judgment reversed, on the law, without costs or disbursements, and petition granted to the extent that the determination is annulled and the matter is remitted to the respondent for further proceedings not inconsistent herewith. There is substantial evidence that petitioners’ sons Joseph, Jr., and Miles Courtney committed the alleged nondesirable acts while members of petitioners’ household, and it was admitted by petitioners at the hearing that Miles Courtney then resided with them. However, the concurrent residence of Joseph, Jr., was not so established. "Such residency must be established not only at the time that the nondesirable acts were committed, but also at the time of the hearing” (see Matter of Hines v New York City Housing Auth., 67 AD2d 1000, 1000-1001). While we are of the opinion that a determination to terminate would be supported by the charges against Miles Courtney, we may not anticipate the decision of the respondent in this respect (cf. Matter of Golisano v Town Bd. of Town of Macedón, 31 AD2d 85, 87-88). Titone, J. P., Cohalan, Martuscello and O’Connor, JJ., concur.