New York City Hous. Auth., Gowanus Houses v Taylor

[*1] New York City Hous. Auth., Gowanus Houses v Taylor 2005 NY Slip Op 50209(U) Decided on February 18, 2005 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: February 18, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., GOLIA and RIOS, JJ.
2004-511 K C

New York City Housing Authority, Gowanus Houses, Appellant,

against

Oreather Taylor, "JOHN and JANE DOE", Respondents.

Appeal by landlord from so much of a final judgment of the Civil Court, Kings County (A. Calabrese, J.), entered March 14, 2003, as dismissed the petition against tenant Oreather Taylor.

Final judgment insofar as appealed from unanimously reversed without costs and final judgment directed to be entered awarding possession to landlord as against Oreather Taylor.

Tenant resides in a federally subsidized housing project. Congress has mandated, inter alia, that leases for apartments within federally subsidized housing projects provide that "any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants, or any drug related criminal activity on or off such premises, engaged in by a public housing tenant, any member of the tenant's household, or any guest or other person under the tenant's control, shall be cause for termination of tenancy" (42 USC § 1437d [l] [6] [1999]). Tenant's lease included a similar provision. Thus, in exchange for a publicly subsidized apartment, tenant agreed to be responsible for the behavior of, among others, members of her household. In Department of Hous. & Urban Dev. v Rucker (535 US 125, 136 [2002]), the United States Supreme Court upheld such evictions notwithstanding the fact that the tenants neither knew of nor acquiesced in the drug-related criminal activity.

In the instant proceeding, the record reveals that tenant's son sold crack cocaine to an [*2]undercover police officer in the building's lobby, in a hallway in the building and at the door to tenant's apartment. After a search warrant was executed, the police recovered, inter alia, an operable gun, bullets, additional illegal narcotics, all of which were hidden, and a large sum of money, which was in plain view, from tenant's son's room within the apartment. Landlord commenced the instant proceeding to evict tenant pursuant to RPAPL 711 (5). The court below held that while landlord might, after service of a notice of termination, have a remedy under RPAPL 711 (1), it could not
recover possession under RPAPL 711 (5) because it did not establish that tenant knew of and acquiesced in the criminal activity. We disagree with this result and, accordingly, reverse and award judgment to landlord.

To recover possession pursuant to RPAPL 711 (5), a petitioner must establish that the premises was used for an illegal trade or business (see RPAPL 711 [5]; Real Property Law § 231 [1]). In addition, because "a penalty of such severity can only be imposed with caution" (220 W. 42 Assoc. v Cohen, 60 Misc 2d 983, 985 [App Term, 1st Dept 1969], quoting Hauer v Manigault, 160 Misc 758, 760 [1936]), caselaw has held that in order to evict pursuant to RPAPL 711 (5), a petitioner must show that the tenant knew or had reason to know of the activity and acquiesced therein (id.; see Matter of 88-09 Realty v Hill, 305 AD2d 409 [2003], affg 190 Misc 2d 286 [App Term, 2d & 11th Jud Dists 2001]). In the instant case, the evidence adduced at trial was sufficient to establish that the premises was used for an illegal trade or business (see RPAPL 711 [5]; Real Property Law § 231 [1]). Having agreed to be responsible for any drug-related activity and to be subject to an eviction therefor, tenant is charged with knowledge of the activity in her apartment and is deemed to have acquiesced therein. Accordingly, we hold that landlord is not limited to seeking to recover possession pursuant to RPAPL [*3]
711 (1), but is entitled as well to recover possession pursuant to the more expeditious RPAPL 711 (5).
Decision Date: February 18, 2005