Beautiful Vil. Assoc. Redevelopment Co. v Gomez

[*1] Beautiful Vil. Assoc. Redevelopment Co. v Gomez 2012 NY Slip Op 50550(U) Decided on March 14, 2012 Civil Court Of The City Of New York, New York County Kaplan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 14, 2012
Civil Court of the City of New York, New York County

Beautiful Village Associates Redevelopment Company, Petitioner-Landlord,

against

Almira Gomez and SHELIMA MOSQUEA 9-11 East 107th Street Apartment A-4-P a/k/a Apartment 4P New York, New York 10029, Respondents-Tenants, -and- "JOHN DOE" AND/OR "JANE DOE" Respondent-Undertenant.



L & T 73584/2011



Attorney for Petitioner

Rose & Rose

291 Broadway, 13th Floor

New York, NY 10007

Respondents

Almira Gomez

9-11 East 107th Street, Apt A - 4P aka 4P

New York, New York 10029

Shelima Mosquea

9-11 East 107th Street, Apt A - 4P aka 4P

New York, New York 10029

David Kaplan, J.

Introduction and Procedural History

Petitioner, Beautiful Village Associates Redevelopment Company, commenced this proceeding to recover possession of Apartment 4P at 9-11 East 107th Street, New York, New [*2]York ("subject premises") from Almira Gomez and Shelima Mosquea ("respondents" collectively), based on its allegation that respondents violated material terms of their Department of Housing and Urban Development ("HUD") "Model Lease" by, inter alia, engaging in drug related criminal activity. Respondents appeared without counsel. Their answer was deemed a general denial prior to trial.

Trial

The initial trial for this proceeding was conducted on December 9, 2011, however the court declared a mistrial. A new trial was held on February 9, 2012. Petitioner called Detective Rafael Munoz, a New York Police Department robbery detective at the 23rd precinct, as its sole witness.Det. Munoz testified that on January 2, 2011 he searched the subject premises pursuant to a "consent to search" signed by respondent Almira Gomez. Upon searching a locked closet in the apartment, Det. Munoz found what he believed to be a controlled substance and drug paraphernalia along with $2,757 in cash. The items were vouchered and the purported drug related items sent to a laboratory for testing. Det. Munoz stated that none of the respondents were arrested and he was unaware of any charges that were sought against any of the people that lived in the apartment. Det. Gomez acknowledged that he had no knowledge of the actual results of the laboratory tests. Det. Munoz testified that Miguel Padilla ("Padilla"), an individual who is not named as a respondent herein, was arrested but he failed to offer any testimony connecting Padilla or his arrest to the apartment.

Additionally, petitioner offered several documents for introduction into evidence which were admitted on consent by the unrepresented respondents. Those documents were: (a) New York Police Department consent to search form signed by respondent Gomez; (b) New York Police Department property clerk invoices; (c) New York Police Department Laboratory for Control Substance Analysis Section laboratory report; (d) a certified deed for the premises; (e) the multiple dwelling registration for the premises; and (f) respondents' HUD Model Leases for Subsidized Programs for the periods of June 1, 2009 to May 31, 2010 and June 1, 2010 to May 31, 2011. Both leases listed respondents Almira Gomez and Shelima Mosquea as the tenants of record for the subject apartment. The former lease also reflected Alexis Mosquea as a tenant. The latter lease, which is the one in effect during the period at issue, lists the landlord as Metropolitan Realty Group.

The property clerk invoices listed items seized during the search as: (a) 30 ziplock bags of alleged marijuana; (b) 3 plastic bags of alleged marijuana; (c) a plastic jar with white powder; (d) a mini strainer containing residue; (e) metal grinder containing residue; (f) an AWS scale; (g) a cloth bag; (h) assorted ziplock bags; and (i) cash in the amount of $2,757. The invoices reflect non-party Padilla as the owner of the property and described the cash seized as potential proceeds from narcotic sales. Absolutely no testimony was offered regarding the relevancy of the items invoiced by the officer; nor connecting Padilla to the subject premises; nor explaining the basis for the conjecture in the invoice. In terms of the laboratory report, petitioner's counsel stated "It speaks for itself" and offered no testimony explaining the results. Despite the allegation of 33 bags of marijuana found in the closet, the laboratory test results showed positive findings of only 2.683 grams of marijuana, 335 grams of a non-identified non-controlled substance and cocaine residue. After entry of its documentary evidence, petitioner then rested.

Respondents then called three witnesses. Respondents' first witness was their long-time [*3]neighbor Karen Herbert. She testified that, in her opinion, respondents have good reputations. She also credibly testified that to her knowledge, during the course of their long-term friendship, respondents have not been arrested nor utilized or sold drugs. She stated that she was shocked to learn that drugs were found at the subject premises by the police.

Respondents' second witness was Alexis Mosquea, the son of respondent Gomez. He credibly testified that the money found by police was the remainder of his lawsuit settlement funds, which he had given to respondent Gomez for safekeeping. He stated, with documentary support, that on October 20, 2010 he received $3,713.34 as part of the settlement. He testified that upon receiving the funds, he did some shopping and then gave the rest to his mother to hold so that he would not spend it. He also attested that to his knowledge respondents did not use or sell drugs, and that he was surprised that drugs were discovered during the police search.

Respondents' third witness was respondent Almira Gomez. Respondent Gomez testified that she has been a tenant at the subject premises for approximately 31 years and has not been involved in any prior eviction proceedings. She credibly testified that Padilla is her husband but that he has never lived in her apartment and that he did not have keys to the subject premises. She also convincingly attested that she has no have control over his actions. She further corroborated that she received Alexis Mosquea's lawsuit settlement proceeds and that she secured the funds in an apartment closet.

Conclusions of Law and Findings of Fact

Petitioner has the burden of proving, by a preponderance of the evidence, that respondents breached a material term of their lease as a basis for terminating their tenancy. The evidence at trial established that petitioner is the owner of the premises at issue. Respondent Gomez, along with her daughters, are the long-term tenants of apartment A-4P a/k/a 4P at the subject building. Respondents' most recent lease was entered into with Metropolitan Realty Group as the landlord. Although respondents benefit from a Section 8 subsidy, neither Metropolitan Realty Group nor petitioner are considered Public Housing Agencies as they are private entities.

Paragraph 23(c) of the parties lease in the Termination of Tenancy section, as relied upon in the petition, states in pertinent part that:

"The Landlord may terminate this Agreement for the following reasons:

(3) drug related criminal activity engaged in on or near the premises, by any tenant, household member, or guest, and any such activity engaged in on the premises by any other person under the Tenant's control;

(4) determination made by the Landlord that a household member is illegally using a drug;

(5) determination made by the Landlord that a pattern of illegal use of a drug interferes with the health, safety, or right to peaceful enjoyment of the premises by other residents;

(6) criminal activity by a tenant, any member of the tenant's household, a guest or another person under the tenant's control: (a) that threatens the health, safety, or right to peaceful enjoyment of the premises by other residents (including property management staff residing on the premises); [*4](b) or that threatens the health, safety, or right to peaceful enjoyment of their residences by persons residing in the immediate vicinity of the premises;

(10) if the Landlord determines that the tenant, any member of the tenant's household, a guest or another person under the tenant's control has engaged in the criminal activity, regardless of whether the tenant, any member of the tenant's household, a guest or another person under the tenant's control has been arrested or convicted for such activity."

Initially the court notes that petitioner failed to establish that it properly terminated respondents' tenancy under ¶23(c)(4), (5) or (10) as it offered no testimony from petitioner or its agents as to the landlord's determination which is a material element to maintaining said claim as provided by the plain language of those lease provisions.[FN1] Even if such a claim could be supported without any testimony from petitioner's agents, there was no evidence establishing that a household member was "using a drug" as required under ¶23(c)(4). Similarly, no support was set forth for terminating the lease under ¶23(c)(5) which requires a pattern of illegal use of a drug. Contrary to the unsupported allegations in the petition, no evidence was offered to show that there were ever any other incidents of drug related criminal activity. Rather, the unrebutted evidence showed that the allegations of drug related criminal activity were completely uncharacteristic of respondents' behavior and use of the subject premises.

Petitioner's claim that it could terminate the tenancy under ¶23(c)(6) of the lease also falls short. This lease provision allows for termination of the lease when a tenant or someone under their control engages in criminal activity which "threatens the health, safety, or right to peaceful enjoyment of the premises by other residents . . . or persons residing in the immediate vicinity of the premises." Again, no such evidence was submitted. In fact, no one was charged or arrested for the alleged drug related criminal activity and nor did the District Attorney's Office request petitioner commence this case. To the extent that Det. Munoz testified that Padilla was arrested, no evidence was offered establishing that he was arrested relating to the matters presented in this case.[FN2] [*5]

The court now turns to ¶23(c)(3) of the lease which allows petitioner to terminate a tenancy based on any "drug related criminal activity engaged in on or near the premises, by any tenant, household member, or guest, and any such activity engaged in on the premises by any other person under the Tenant's control." Here, petitioner has not shown by a preponderance of the evidence that respondents, its guests or those under its control, engaged in "drug related criminal activity" in or near the subject premises (cf. New York City Hous. Auth. v Williams, 28 Misc 3d 1223[A] [Civ Ct, Bronx County 2010]; Howard Ave. Assoc. v Rojas, NYLJ, April 5, 2002 at 17 [Civ Ct, Kings County]). Petitioner attempted to present the elements of its prima facie case via scant documentary evidence — which at times was ridden with hearsay — and the testimony of a sole detective from the New York City Police Department's robbery unit. There was no testimony regarding Det. Munoz's experience with narcotics matters and it was evident that he was unaware of what was actually found; whether it was in fact related to criminal activity; and whether it belonged to any of the apartment's tenants or guests. While petitioner had ample opportunity to extrapolate on what was recovered by the police, it opted not to offer any other evidence or testimony to support its claim that respondents' conduct amounted to "drug related criminal activity" or to rebut respondents' explanation that the cash seized from the premise was the proceeds of a recent lawsuit settlement.Petitioner essentially contends, as emphasized in its summation, that regardless of the deficiencies in the evidence presented at trial, under the United States Supreme Court's holding in Dept. of Hous. & Urban Dev. v Rucker (535 US 125 [2002]), it has the discretion to terminate respondents' tenancy under a strict liability standard regardless of whether respondent knew of the existence of the drugs at the subject premises. This argument is misguided.

The statute at issue in Rucker — 42 USC § 1437d (l) (6) — vests local public housing agencies ("PHA")[FN3] with the discretion "to evict a tenant when a member of the tenant's household or a guest engages in drug-related criminal activity, regardless of whether the tenant knew, or had reason to know, of that activity" (535 US at 128). Inherent in the policy reasons behind granting PHAs the extraordinary power of combating the drug epidemic facing public housing by permitting "no-fault evictions" was likewise entrusting them to use their discretion prudently when wielding said sword (see Rucker, 535 US at 133-134 ["The statute does not require the eviction of any tenant who violated the lease provision . . . Instead, it entrusts that decision to the local public housing authorities, who are in the best position to take account of, among other things, the degree to which the housing project suffers from rampant drug-related or violent crime'" with " the seriousness of the offending action,'" and " the extent to which the leaseholder has . . . taken all reasonable steps to prevent or mitigate the offending action'"]; 24 CFR § 966.4 [l] [5] [i]). The Supreme Court did not address whether its decision in Rucker applies to private landlords, like petitioner, which are not PHAs and thus not covered under the [*6]same section of the Code.[FN4] Regardless, petitioner did not bring this case on the theory that respondent violated federal HUD rules and regulations. Rather, petitioner brought the proceeding, as referenced in the petition and predicate notice, under a breach of lease theory which raises only a state law issue (see Henry Phipps Plaza South Assoc. LP v Rodriguez, 2012 WL 614371 [SDNY, February 27, 2012] [the allegations of the "violation of the rules and regulations of" the HUD model "lease . . . raise purely state law issues"]).

With respect to the alleged drug related criminal activity, the limited facts presented at trial were that respondent Gomez allowed the police to search her apartment and the search was incident to an unrelated arrest of non-party Padilla who misstated that he resided at the subject premises. Respondent Gomez cooperated at all times and gave access to the sole area where the a small amount of drugs were found, which on its own, found in a non-public area, does not amount to criminal possession or sale under New York law (see Penal Law § 221.05). There was no proof that it was intended for sale or part of any ongoing illegal activity. These facts alone would not give rise to eviction under RPAPL 711 (5) and Real Property Law § 231 (1) which require a showing that the premises were "utilized as a focal point for drug activity or that any such illegal use occurred customarily or habitually' upon the premises" (137 Realty Assoc. v Samuel, 7 Misc 3d 80, 82 [App Term, 1st Dept 2005]). If proven at a criminal trial, these facts would not amount to criminal activity under New York law, because the mere possession of a small amount of marijuana in one's home, without more, has been decriminalized by our legislature and is classified solely as a violation (see Penal Law § 221.05; see also People v Allen, 92 NY2d 378 [1998][Legislature's intent in passing the Marihuana Reform Act of 1977 was to "reduce the penalties for possession and sale of marihuana and in particular to decriminalize' the possession of a small amount of marihuana for personal use"]).[FN5] Thus, petitioner has failed to establish that respondents were in breach of their lease by engaging in "drug related criminal activity."

Accordingly, as petitioner failed to make out its prima facie case, the petition is dismissed.

This is the decision and order of the Court, copies of which are being mailed to all parties. The parties are directed to pick up their exhibits withing 30 days or they will either be sent to the parties or destroyed at the court's discretion and in compliance with DRP-185 (http://www.courts.state.ny.us/courts/nyc/civil/directives/DRP/DRP185.pdf).

Dated: March 14, 2012

New York, New York____________________________

Hon. David J. Kaplan, J. H. C. Footnotes

Footnote 1: Since termination under ¶23(c)(4), (5) or (10) of the lease requires an affirmative "determination" by petitioner as to the existence of facts that justify subjecting respondents to eviction, this court is of the opinion that petitioner should have presented an agent to support said claim. The court further notes, although not dispositive herein, that Chapter 8-14 (B) of HUD Handbook 4350.3, entitled "Factors to Consider When Terminating For Drug Abuse and Other

Criminal Activity," instructs owners of the importance of consistency in implementing "decision-making procedures" as well as sets forth a nonexclusive list of factors which the landlord may consider.

Footnote 2: Incorporated into the petition is an incomplete copy of what appears to be part of a supporting document of a felony complaint against Padilla. The document is dated January 2, 2010 which predates the subject incident by one year. Attached to that document is a printout of an arrest report for Padilla which lists his address as a location in Bronx, New York. Under the "Charges" section, there is no reference to drug related activity.

Footnote 3: Public Housing Agency is defined as "any State, county, municipality, or other governmental entity or public body (or agency or instrumentality thereof) which is authorized to engage in or assist in the development or operation of public housing" (42 USC § 1437a [b] [6]).

Footnote 4: 42 USC § 1437d (l) (6) is expressly limited to "Public Housing Agenc[ies]." To the extent that 42 USC § 1437f may apply, that section does not contain identical language to 42 USC § 1437d (l) (6) and presents different considerations that were not addressed in Rucker.

Footnote 5: Penal Law § 10.00 (6) defines "Crime" as "a misdemeanor or a felony." Penal Law § 221.05 states that ". . . [u]nlawful possession of marihuana is a violation punishable only by a fine. . ."