BARBARA JAFFE, J.

By notice of petition dated July 30, 2010, petitioner brings this CPLR Article 78 proceeding seeking to annul and vacate respondents' termination of her tenancy and staying any NYCHA proceeding during the pendency of this proceeding, and awarding attorney fees, costs, and disbursements incurred in prosecuting this proceeding. By verified answer dated September 29, 2010, respondents oppose the petition.

I. BACKGROUND

Since 2006, petitioner has lived in apartment 3J at 745 East 152nd Street, Bronx, New York, a public housing project operated by respondents. (Verified Petition, dated July 30, 2010 [Pet.], Exh. B). She has significant mental health issues, struggles with drug addiction, and receives Social Security Disability benefits. (Id., Exhs. F, G, H). During March and April 2009, she stopped taking her psychotropic medications and relapsed into drug addiction. (Id., Exhs. J, L). Although her children are in the temporary custody of the Administration for Children's Services, they stay with her every other weekend and in order to regain custody of them, she must maintain steady housing. She now responds positively to drug treatment. (Id., Exhs. D, E, K).

II. PROCEDURAL BACKGROUND

On June 8, 2010, respondents notified petitioner of their intent to terminate her tenancy, alleging that:

(Id., Exh. P). A hearing, scheduled for July 7, 2010, was adjourned several times for petitioner to hire counsel and for a guardian ad litem to be appointed. (Id., Exh. Q).

The hearing commenced on December 8, 2010.

III. HEARING EVIDENCE

Respondents' sole witness at the hearing was the police officer who was part of the team that sought and executed the warrant to search petitioner's apartment. While the officer did not personally observe earlier controlled buys, he had sent a confidential informant into petitioner's apartment, having instructed him to purchase drugs with buy money which the officer provided. Some minutes later, the informant exited the apartment and gave the officer the crack cocaine which he told the officer he had purchased from petitioner. The officer vouchered the drugs and soon thereafter, accompanied his supervisor to court to secure the warrant.

On March 19, 2009, following the execution of the warrant in petitioner's apartment, which yielded two marijuana cigarettes, and several bags of crack cocaine found on petitioner's person, petitioner was arrested for possession with intent to sell crack, although formally charged with misdemeanor drug possession relating to the crack. She pleaded guilty to the charge and was sentenced to time served. (Id., Exhs. M, N, O). The testifying officer was present at the search and witnessed the arrests of petitioner and two other individuals in her apartment. (Id., Exh. A).

IV. HEARING OFFICER'S DECISION

By decision dated March 17, 2010, petitioner's tenancy was terminated due to non-desirability, breach of respondents' rules and regulations governing her tenancy, and chronic rent delinquency. In her decision, the hearing officer received in evidence petitioner's lease, affidavit of income, and a computer printout of her rent payments. She summarized the executing officer's testimony as follows, in pertinent part: Upon the execution of the warrant, the officer observed three people in the apartment, including petitioner, three bags of crack cocaine, two marijuana cigarettes, numerous empty zip lock bags, mail addressed to petitioner, and $254 in cash. All three individuals were arrested, and petitioner ultimately pleaded guilty to misdemeanor possession of a controlled substance. The executing officer did not personally observe any of the underlying sales. (Id.).

The hearing officer summarized petitioner's evidence as follows, in pertinent part: Petitioner, who receives social security disability benefits based on her longstanding mental illness, lost custody of her children due to her drug addiction and, as her goal is to regain custody of them, her continued tenancy is crucial. In 2008, it was recommended that she enroll in a detoxification program and in March and April 2009, she stopped taking her medications and became destabilized. Since April 2009, she was successfully participating in an outpatient treatment program and testified at the hearing that she no longer craves crack. She acknowledged, however, that she has previously been unsuccessfully treated for drug addiction. Petitioner denied selling drugs in her apartment and stated that the empty zip lock bags found therein were used for craft work and that the street value of the crack seized was $15. (Id.).

In rejecting petitioner's argument that the executing officer's testimony concerning the alleged sales within petitioner's apartment was inadmissible because it was based on hearsay and because the New York City Police Department had failed to honor subpoenas for the documentation underlying the warrant, the hearing officer observed that hearsay is admissible in the proceeding. She agreed to sign a subpoena for the documentation although she expressed doubt that it would be produced, and when asked by counsel if she would strike the testimony concerning the sales for failure to produce the underlying documentation, she indicated that rather, she would weigh the testimony and disregard whatever testimony she found unreliable or incredible based on insufficient knowledge. She ultimately found that absent any evidence that the NYPD documentation was under respondents' control, there was no basis for precluding the otherwise credible and reliable hearsay derived from information "based upon the normal procedures instituted by the Police Department in relation to controlled buys.'" (Id.).

The hearing officer also disagreed with petitioner's contention that a reasonable accommodation should be granted based on her past drug addiction and the substantial changes made in her life following the arrest. Rather, the hearing officer found that even if petitioner's past drug addiction constituted a disability to be accommodated, respondents had no responsibility to accommodate her given the risk that her conduct would endanger the safety and health of other residents, observing that the search warrant was obtained based not on petitioner's use of drugs but as a result of sales of illegal drugs from her apartment, which activity attracts more crime. While the hearing officer considered petitioner's present efforts admirable, she determined that they were insufficient to preserve her tenancy and that a termination of the tenancy was not, under the circumstances, excessively harsh. She also found that petitioner had been consistently late in paying her rent. (Id.).

V. CONTENTIONS

Petitioner argues that the hearing officer's decision was based on inadmissible evidence, namely, evidence allegedly appearing in documentation supporting the search warrant, which documentation was never provided to her. Rather, the police officer was permitted to testify that someone on the buy and bust team had purchased drugs from petitioner at an unspecified time, and she contends that having been informed that respondents were relying on her March 19 arrest in seeking the termination of her tenancy, she was unaware "that she would face sale charges for facts arising out of the events of March 19, 2009." Petitioner thus claims that her due process rights were violated, and that respondents violated their own Management Manual and Termination of Tenancy Procedure § 4 and federal law. Petitioner also observes that the hearing officer's findings were based not on petitioner's "personal use of a controlled substance, but rather as a result of the sales of illegal drugs attributed to [petitioner's] apartment," and that the hearing officer failed to weigh all of the relevant and mitigating circumstances, that the penalty shocks the conscience, and is arbitrary, capricious, an abuse of discretion, and contrary to law, and that the proper penalty is probation, which would constitute a reasonable accommodation of petitioner's mental disabilities. (Memorandum of Law in Support of Petitioner's Application for a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, dated July 30, 2010 [Pet. Mem.]).

In opposition, respondents argue that the hearing officer's determination was supported by substantial evidence and maintains that petitioner's mere possession of a controlled substance would have entitled them to terminate petitioner's tenancy and that consequently, the consideration of the prior sales was appropriate. They maintain that absent my ability to consider the interests of justice in reviewing the agency's determination, petitioner's family circumstances may not be considered, and that unless the sanction is so disproportionate as to shock one's sense of fairness, termination is a fair sanction under the circumstances, notwithstanding petitioner's recent efforts at rehabilitation. They also deny any causal connection between petitioner's mental illness and her drug-related criminal activity and chronic rent delinquency, and in any event, assert that it would be unreasonable to accommodate petitioner at the expense of her neighbors. Respondents also contend that given the Notice and Specification of Charges, petitioner had notice that evidence of drug sales would be admitted, that hearsay is admissible in administrative hearings, that the hearing officer had discretion to consider the officer's testimony concerning the sales, and that absent any jurisdiction over the NYPD, respondents could not obtain the documents sought by petitioner. (Respondents' Memorandum of Law in Support of Verified Answer, dated Sept. 29, 2010).

VI. ANALYSIS

When an administrative determination is made following a hearing, and a claim of substantial evidence is raised, the matter must be transferred to the Appellate Division. (CPLR 7803[4], 7804[g]; Siegel, NY Prac § 568 [4th ed]). However, if no issues are raised involving substantial evidence, a transfer need not follow. (Matter of Kinard v New York State Hous. Auth., 2009 WO 3780701, 2009 NY Slip Op 32584[U] [Sup Ct, New York County]; Matter of Rolon v New York State Hous. Auth., 23 Misc.3d 1114[A], 2009 NY Slip Op 50751[U] [Sup Ct, New York County]).

Here, although respondents argue that the hearing officer's determination is supported by substantial evidence, they do not seek a transfer to the Appellate Division, nor do the facts reflect an issue of substantial evidence. Rather, petitioner complains of the unfairness of the proceeding and the penalty imposed. Consequently, I review the proceeding to discern whether the determination reached is arbitrary and capricious.

Judicial review of an administrative agency's decision is limited to whether the decision "was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed." (CPLR 7803[3]). In reviewing an administrative agency's determination as to whether it is arbitrary and capricious under CPLR Article 78, the test is whether the determination "is without sound basis in reason and . . . without regard to the facts." (Matter of Pell v Bd. of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 231 [1974]; Matter of Kenton Assoc., Ltd. v Div. of Hous. & Community Renewal, 225 A.D.2d 349 [1st Dept 1996]). Moreover, the determination of an administrative agency, "acting pursuant to its authority and within the orbit of its expertise, is entitled to deference, and even if different conclusions could be reached as a result of conflicting evidence, a court may not substitute its judgment for that of the agency when the agency's determination is supported by the record." (Matter of Partnership 92 LP & Bldg. Mgt. Co., Inc. v State of NY Div. of Hous. & Community Renewal, 46 A.D.3d 425, 429 [1st Dept 2007], affd 11 N.Y.3d 859 [2008]).

The June 2010 charges wherein respondents notified petitioner of their intent to terminate her tenancy afforded petitioner sufficient notice that on or about March 19, 2009 or some time before that, she, either alone or in concert with two unauthorized occupants or guests, unlawfully possessed, sold or attempted to sell crack cocaine and marijuana recovered during the execution of the warrant. This notice did not permit petitioner to assume that she would be questioned only about the drugs seized from her person.

"Hearsay is admissible in an administrative proceeding and may constitute substantial evidence where it is sufficiently relevant and probative." (People ex rel. Vega v Smith, 66 N.Y.2d 130, 139 [1985]; Matter of Heisler v Scappaticci, 2011 NY Slip Op 01472 [2d Dept]; 49th St. Mgt. Co. v New York City Taxi and Limousine Commn., 277 A.D.2d 103, 106 [1st Dept 2000]). As the hearing officer based her decision not only on reliable and credible hearsay evidence that illegal drugs were being sold at petitioner's apartment, but also on petitioner's plea of guilty to misdemeanor drug possession. That the conviction is not mentioned in the hearing officer's findings and conclusions is a likely oversight. In any event, the conviction constitutes an additional and independently sufficient basis for the termination of petitioner's tenancy. Thus, the termination does not rest solely on insubstantial or unreliable hearsay. (See 49th St. Mgt., 277 A.D.2d 103, 107 [although hearing officer improperly relied on a prior determination in another proceeding, there was substantial other evidence to support determination]).

Nor was the hearing officer required to accommodate petitioner's disability. (See Matter of Moore v New York City Hous. Auth., 27 Misc.3d 1211[A], 2010 NY Slip Op 50682[U], * 7 [Sup Ct, New York County 2010]). And the penalty imposed does not shock the conscience.

Based on the foregoing, petitioner has not demonstrated that the determination challenged here is arbitrary and capricious, an abuse of discretion, and contrary to law, or that she was deprived of her due process rights.

VII. CONCLUSION

Accordingly, it is hereby

ORDERED and ADJUDGED, that the petition is denied and the proceeding is dismissed.