Los Tres Unidos Assoc., LP v Mercado

[*1] Los Tres Unidos Assoc., LP v Mercado 2014 NY Slip Op 24097 Decided on April 11, 2014 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.

Decided on April 11, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, J.
570545/13

Los Tres Unidos Associates, LP, Petitioner-Landlord-Appellant,

against

Angel Mercado, Respondent-Tenant-Respondent, -and- "John Doe" and/or "Jane Doe," Respondent-Undertenants.

Landlord appeals from a final judgment of the Civil Court of the City of New York, New York County (David J. Kaplan, J.), entered on or about February 17, 2012, after a nonjury trial, which dismissed the petition in a holdover summary proceeding.

Per Curiam.

Final judgment (David J. Kaplan, J.), entered on or about February 17, 2012, affirmed, without costs.

We sustain the dismissal after trial of this holdover eviction proceeding, petitioner-landlord having failed to establish by competent evidence that tenant violated paragraph 23(c)(3) of the governing HUD lease agreement, which authorized landlord to terminate the lease in the event that tenant or persons within specified categories engaged in "drug related criminal activity" in or near the building premises. The landlord's trial presentation consisted largely of its admission into evidence of a certificate of disposition issued by the Criminal Court of the City of New York indicating that, on June 23, 2011, tenant pled guilty to one count of unlawful possession of marihuana under Penal Law § 221.05, a violation, and tenant's testimony acknowledging the above conviction. The only evidence specifically bearing on the facts underlying the conviction was tenant's perfunctory testimony - elicited on the landlord's case-in-chief - that he was stopped or "grabbed" by a single police officer as he exited the building and that the officer's search yielded one bag containing an unspecified amount of marihuana. Without more, landlord's sparse evidence was insufficient to meet its burden of showing that tenant engaged in "drug related criminal activity," a term defined under governing federal regulations as "the illegal manufacture, sale, distribution, or use of a drug, or possession of a drug with intent to manufacture, sell, distribute or use the drug" (24 CFR 5.100). On this limited record, and absent any proof concerning the background facts or circumstances surrounding [*2]tenant's arrest, his intent vis-a-vis the marihuana is not properly inferable, and thus no breach of the federally mandated lease provision here at issue - requiring possession accompanied by an unlawful intent - was shown.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur
Decision Date: April 11, 2014