Matter of Sterling v New York City Hous. Auth.

[*1] Matter of Sterling v New York City Hous. Auth. 2009 NY Slip Op 50359(U) [22 Misc 3d 1129(A)] Decided on February 25, 2009 Supreme Court, New York County Shafer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 25, 2009
Supreme Court, New York County

In the Matter of the Application of Sharon Sterling, Petitioner,

against

New York City Housing Authority, Respondent.



401143/08

Marilyn Shafer, J.

In this Article 78 proceeding, petitioner Sharon Sterling seeks a judgment annulling the determination of the respondent, New York City Housing Authority (NYCHA), which terminated her tenancy based on illegal drug activity in her apartment. Petitioner contends, among other things, that she was unaware of the drug activity. Respondent seeks dismissal of the petition, and contends that it acted reasonably, lawfully and properly in terminating petitioner's tenancy.

BACKGROUND AND FACTUAL ALLEGATIONS

Until her tenancy was terminated, petitioner was the sole lessee for an apartment which is part of a development in the New York City Housing Authority (NYCHA). Petitioner and her son, Lamiek Richardson (Richardson) were the two authorized residents in the apartment. Respondent Exhibit B. NYCHA receives federal funds and must comply with federal rules and regulations disseminated through the United States Department of Housing and Urban Development (HUD). Respondent Answer, at 2. Public authorities may terminate a tenancy when the "tenant, household members, or guests engage in criminal activity that threatens the safety of right to peaceful enjoyment of the premises by other tenants." Id. Specifically, federal regulations mandate that the tenant shall be obligated:

To assure that no tenant, member of the household, or guest engages in:

(A) Any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other residents; or

(B) Any drug related criminal activity on or off the premises;

To assure that no other person under the tenant's control engages in:

(A) Any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other residents; or [*2]

(B) Any drug related criminal activity on the premises[.]

Respondent Answer, at 3, citing to 24 CFR § 966.4 (f) (12) (i) (ii).

These regulations, among others, are incorporated into petitioner's lease agreement under the heading of "Tenant's Obligations." Respondent Exhibit A.

After receiving a confidential informant's account regarding the sale of narcotics, on February 22, 2007, the New York Police Department executed a search warrant on petitioner's apartment. While executing the search warrant, the NYPD recovered 52 zip-lock bags of marijuana and $1,304.00 in United States currency in the petitioner's living room, one rock of cocaine and multiple crack and marijuana pipes in the petitioner's master bedroom, a .380 caliber handgun, ammunition, a gun cleaning kit, a quantity of cocaine, and drug paraphernalia in Richardson's bedroom, and various drug paraphernalia scattered in the apartment. Richardson, petitioner, two other adults and several children had been in the apartment, although the children were removed before the apartment was searched. The NYPD arrested Richardson.

Another search warrant was executed on petitioner's apartment on March 23, 2007. Petitioner, Richardson and one other person were present in the apartment. Police officers found cocaine, crack, marijuana, and drug paraphernalia in Richardson's room. He was subsequently arrested.

Petitioner was notified via the proper termination procedure protocol that she would be facing eviction. Proper termination protocol is such that if a tenant breaches a rule or regulation or is undesirable, NYCHA takes administrative action through its termination procedures. Under the termination procedures, "non-desirability" is defined as:

The conduct or behavior of the tenant or any person occupying the premises of the tenant which constitutes:

(1) a danger to the health and safety of the tenant's neighbors; (2) conduct on or in the vicinity of the [Housing] Authority premises which is in the nature of sex or morals offense; (3) a source of danger or a cause of damage to the employees, premises or property of the [Housing] Authority; (4) a source of danger to the peaceful occupation of other tenants; or (5) a common law nuisance.

Respondent, Exhibit C.

If the development manager believes that a tenant should be terminated due to either a breach of rules or regulations or non-desirability, he or she meets with the tenant to discuss the issue. After this discussion, the tenant is notified via mail that a full evidentiary hearing will be held in front of a neutral hearing officer. The notice to the tenant provides that she has the "right to be represented by counsel or another representative of her choice, to confront and cross-examine witnesses against her, and to present witnesses and evidence in her defense." Id.

Petitioner met with management, and also received a letter, apprising her of the upcoming hearing regarding her eviction, and her entitlement to be represented by counsel. Petitioner's hearing was adjourned for several months because she would appear for the hearing and then state that she wanted to retain counsel. She was given a copy of the charges and phone numbers [*3]for free legal services. She was told in pertinent part, that NYCHA was charging her with non-desirability and breach of rules and regulations alleging unlawful activity pursuant to the execution of the two search warrants. On September 27, 2007, the hearing commenced after petitioner stated that she had not retained counsel but was ready to proceed with the hearing. See, Transcript, at 35.

On January 22, 2008, the hearing officer sustained the charges of non-desirability and breach of rules and regulations and issued a disposition of "[t]ermination of tenancy." Respondent Exhibit U. The petitioner was then sent a letter, dated February 6, 2008, which stated that the "New York City Housing Authority approves the Hearing Officer's decision and disposition in this proceeding finding the tenant ineligible for continued occupancy. The tenancy shall therefore be terminated." Id., Exhibit V.

Petitioner denies some of the facts at issue, namely that the officer on February 22, 2007 only found pipes in her master bedroom, not the narcotics themselves. She also states that although she met with the development manager, she was never given a chance to speak at the meeting. Petitioner also denies signing her lease. Petitioner does not deny that drugs were found in her apartment on two separate occasions.

On or about May 22, 2008, petitioner commenced this current Article 78 proceeding.

DISCUSSION

In the context of an Article 78 proceeding it is well settled that "a reviewing court is not entitled to interfere in the exercise of discretion by an administrative agency unless there is no rational basis for the exercise, or the action complained of is arbitrary and capricious." In the Matter of Soho Alliance v NY State Liquor Authority, 32 AD3d 363, 363 (1st Dept 2006), citing to Matter of Pell v Board of Ed. Of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222 (1974). Specifically, in the realm of a NYCHA administrative proceeding, judicial review is limited to: "whether there exists substantial evidence to support the determination ... [t]he proof must be more than seeming or imaginary ... [t]he decision of the New York City Housing Authority need not be the best which would have been made and need not be free from flaws -it must only have a rational basis [internal citations omitted]." Walker v Franco, 275 AD2d 627, 628 (1st Dept 2000), affd 96 NY2d 891 (2001).

The Housing Authority has a responsibility to provide a safe and drug-free living environment for its tenants. The United States Supreme Court has held that 42 USCS § 1437 d (1) (6) "unambiguously" allows the public housing authority to evict tenants for drug-related activity, regardless of whether the tenant knew of the activity. See, Dept. of Housing and Urban Development v Rucker, 535 US 125, 130 (2002). Regardless of knowledge of the activity, the tenant who can not control drug activity presents a threat to the health and safety of other residents and the public housing facility. Id. at 134. While NYCHA is not required to evict a tenant for drug related activity, Congress has given the local public housing authorities the "discretion to conduct no-fault evictions for a drug-related crime." Id. at 135. The decision to evict is entrusted to the "local public housing authorities, who are in the best position to take account of ... the degree to which the housing project suffers from rampant drug-related or violent crime.'" Id. at 134, citing to 42 USC § 11901 (2).

Petitioner violated one of the obligations listed on her lease by possessing illegal drugs in the apartment. Moreover, case law indicates that a "tenant living in Federally subsidized housing [*4]is not permitted to continue occupancy if it is found that the tenant, or his or her household guest, has possessed illegal controlled substances either on or off the premises. Willock v Schenectady Mun. Housing Auth., 271 AD2d 818 (3d Dept 2000). Even after the apartment was already searched once, a month later, illegal drugs and paraphernalia were found in petitioner's apartment. The weapon, drugs and paraphernalia found the first time constitutes a reasonable ground upon which to support NYCHA's determination to terminate petitioner's tenancy.

Petitioner denies that she knew of any drugs in the apartment and contends that NYCHA provides no evidence stating such. However, as set out below, petitioner's claimed ignorance is irrelevant.

The hearing officer cites to Dept. of Housing and Urban Development v Rucker, (535 US 125, supra), in her written determination that petitioner's tenancy should be terminated. In Rucker, the court supported the termination of a tenancy for drug related acts of occupants or guests even if the tenant claims he is innocent and did not know about the drug related activity.

As respondent argues, the Appellate Division, First Department, has consistently upheld the same standard set out in Rucker, which is the ability to terminate tenancies irrespective of whether the tenant knew of the illegal conduct. In Satterwhite v Hernandez (16 AD3d 131 [1d Dept 2005]), in which a termination of tenancy was upheld when the testimony of the police officer indicated that he found illegal drugs in tenant's living room, ammunition hidden in the apartment and also illegal drugs hidden in the apartment, the court ruled that the "propriety of respondents' determination terminating petitioner's tenancy did not depend on whether petitioner knew that drugs were being stored in and sold from her apartment." Id. at 131, citing to Rucker.

Petitioner contends that, even if she knew of the drugs in the apartment, only actual evidence of drug selling is a requirement for eviction, not actual drug use. Petitioner cites to People v Albadani (187 Misc 2d 910 [Crim Ct NY County, 2001]), in which the court found that the "possession or sale of pipes, even pipes designed for the smoking of crack, did not violate any one of the three subsections of NY Penal Law § 220.50." Id. at 911. However, this case is clearly different than petitioner's situation. In Albadani, only crack pipes were found in the defendant's place of employment and this alone did not amount to criminal activity. In the present case, not only were pipes found in the apartment, but also the illegal drugs themselves.

Petitioner also cites to NYCHA v Liscomb-Arroyo, (19 Misc 3d 1140(A), 2008 NY Slip Op 51085[U] [Civ Ct, Kings County 2008]), as a basis that she should not be evicted simply for drug use and not drug selling. However, petitioner is misguided in this application, since Lipscomb-Arroyo refers to holdover/eviction proceedings brought pursuant to RPAPL § 711 (5), § 715 and RPL § 231 (1) where the standard for eviction is that the tenant "knew or should have known of the illegal activity." In New York City, NYCHA has a choice to invoke the administrative process ... [s]hould a hearing take place, the standard for termination of the tenancy in a commercial drug breach of the lease matter is strict liability.'"2008 NY Slip Op 51085[U], *6. Even if the court applied a "knew or should have known" standard, given the evidence that drugs and drug paraphernalia were found in petitioner's room and all over petitioner's apartment, it is highly unlikely petitioner was unaware of the illegal drug activity occurring in her apartment.

Even though petitioner denies some of the facts of the case, the petition raises no question of fact that requires a trial de novo by the Appellate Division under CPLR 7804 (g). See e.g. [*5]Feierstein v Klasfeld, 255 AD2d 161 (1d Dept 1998). Petitioner never denies the substantial evidence that illegal drugs were found in her apartment on not one, but two occasions. Accordingly, this court shall dispose of this proceeding and the determination to terminate petitioner's tenancy will not be vacated.

While it is unfortunate that petitioner will have to find a new residence, under the circumstances, this situation is not something that is "shocking to one's sense of fairness." See e.g. Matter of Phillips v Le Page, 4 AD3d 704,705 (3d Dept 2004).

Although petitioner's remaining contentions have been considered, they need not be addressed as a result of this decision.

CONCLUSION, ORDER AND JUDGMENT

Accordingly, it is hereby

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

Dated: _February 25, 2009ENTER:

___________________

J.S.C.