
    In the Matter of Encarnacion Pizarro, Petitioner, v Sally Hernandez-Pinero, as Chair of the New York City Housing Authority, et al., Respondents.
    [610 NYS2d 251]
   —In this CPLR article 78 proceeding which was transferred to this Court by order of the Supreme Court, New York County (William J. Davis, J.), entered December 1, 1992, in which petitioner seeks to vacate respondents’ April 29, 1992 determination terminating her tenancy at the Seward Park Extension Houses, the petition is unanimously granted to the extent of annulling such determination and remanding the matter to respondents for a new hearing, without costs.

Where a description of the person who was seen cutting the safety line of a scaffold allegedly from a window in petitioner’s tenth floor apartment was first given at the hearing on the charges against petitioner, it was improvident for the Hearing Officer to grant respondents’ motion to conform the charge of non-desirability to the proof so as to shift the burden of proof to petitioner. Moreover, respondents’ determination states that it is based, inter alia, upon a violation of rule 1 (o) of the Tenant Rules and Regulations; however, the third charge which alleged a violation of rule 1 (o) was withdrawn by respondents and deemed dismissed without prejudice at the commencement of the hearing. Accordingly, under these circumstances and given the lack of any evidence regarding the status or identity of the perpetrator, a new hearing is warranted in order to afford petitioner a full opportunity to defend herself against the charges. Concur — Rosenberger, J. P., Ellerin, Kupferman and Nardelli, JJ.  