Jamie's Place I LLC v Reyes

[*1] Jamie's Place I LLC v Reyes 2009 NY Slip Op 52409(U) [25 Misc 3d 1234(A)] Decided on October 22, 2009 Civil Court Of The City Of New York, New York County Kennedy, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 22, 2009
Civil Court of the City of New York, New York County

Jamie's Place I LLC, Petitioner-Landlord,

against

Aida Reyes and ROBERT ENCARNACION, Respondents-Tenants.



L & T 252658/08



Attorney for Petitioner: Phillip L. Wartell of Rose & Rose Attorney for Respondents: Paul Peloquin & Simon Heller of Manhattan Legal Services

Tanya R. Kennedy, J.

The Court's Decision/Order on petitioner's motion for judgment notwithstanding the verdict, pursuant to CPLR 4404(a), is as follows:

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner commenced the instant summary holdover proceeding alleging that respondents, their household members and/or guests breached the subject HUD lease by engaging in drug-related criminal activity in or near the premises.

On June 30, 2009, a jury trial was held before this Court where petitioner presented Ms. Valerie Perez, the building site manager as its sole witness. Prior to petitioner calling its sole witness, the Court read into the record certain facts which were stipulated to by the parties' attorneys. Those facts were as follows: On September 5, 2008 at approximately 6:45 a.m. at apartment 5E of 127 E. 117th Street here in New York County, Detective Jugony Rosado of the Manhattan North Narcotics Division 25th Precinct recovered one ziplock bag containing approximately one eighth of an ounce of crack cocaine from the shared bedroom of [*2]respondents Robert Encarnacion and Bryan Encarnacion pursuant to his execution of a search warrant at the location. This ziplock bag field tested positive for crack cocaine. Pursuant to the detective's recovery of crack cocaine, Detective Rosado placed respondent Robert Encarnacion under arrest for Penal Law §220.03 Criminal Possession of a Controlled Substance in the Seventh Degree, a Class A Misdemeanor and Penal Law §220.55 Criminal Use of Drug Paraphernalia in the First Degree, a Class D Felony and also placed respondent Bryan Encarnacion under arrest for Penal Law §220.03 Criminal Possession of Controlled Substance in the Seventh Degree, a Class A Misdemeanor, and Penal Law §220.50(2) Criminal Use of Drug Paraphernalia in the Second Degree, a Class A Misdemeanor. Respondent Aida Reyes was also present in the apartment during the execution of the search warrant and arrest. Respondent Robert Encarnacion was convicted of Penal Law §220.03 Criminal Possession of a Controlled Substance in the Seventh Degree pursuant to the entry of his guilty plea and performed five days of community service in connection with such guilty plea. The criminal case against respondent Bryan Encarnacion is still pending. (Transcript, p. 46, line 23 through p. 48, line 8)

During the course of Ms. Perez's testimony, petitioner's counsel offered five separate documents for introduction into evidence which were admitted without objection by respondents' counsel.[FN1] Those documents were (a) the certified deed for the premises (Petitioner's Exhibit 1); (b) the property registration form for the premises (Petitioner's Exhibit 2); (c) respondent's HUD Model Lease for Subsidized Programs for the period of December 1, 2006 through November 20, 2007 (Petitioner's Exhibit 3); (d) respondent's annual certification for the subject apartment for one year commencing on December 1, 2007 (Petitioner's Exhibit 4); and (e) the building rules and regulations (Petitioner's Exhibit 5). The lease which was admitted into evidence listed respondents Aida Reyes and Robert Encarnacion as the tenants of record for the subject apartment.

Ms. Perez identified Aida Reyes's signature on the model lease, annual certification and building rules and regulations, and also read into the record certain portions of the lease. Those portions included paragraphs 23(c) and (10) which provide: c. 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;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.

Additionally, Ms. Perez testified that petitioner implemented a "zero-tolerance" policy regarding drug related criminal activity at HUD housing developments. (Transcript, p. 66, line 5) Further, Ms. Perez testified that "[d]rug related infractions on the ground of [the] housing development [would] result in eviction proceedings." (Transcript, p. 71, lines 14-16)

The sole witness for respondents was respondent Aida Reyes. Ms. Reyes testified, inter alia, that she lived in the building for 44 years and in the subject apartment for 20 years, and was currently in treatment for mental depression. Additionally, Ms. Reyes testified, inter alia, that her son Robert Encarnacion was 25 years old, her son Bryan Encarnacion was 17 years old, her daughter Lydia Reyes was 16 years old, and that she did not enter her sons' shared bedroom for any reason.

After the close of evidence that same day, the Court read its final instructions and provided the jury with a verdict sheet which set forth the following question for its determination: Did respondents violate paragraph 23 (c) of the lease?[*3]

______YES_________NO

On July 1, 2009, the jury rendered a verdict in favor of respondents, determining that respondents did not violate paragraph 23(c) of the lease. At such time, petitioner's counsel made an oral motion for a judgment notwithstanding the verdict. The Court directed petitioner's counsel to file a written motion for such relief and set a briefing schedule at the request of respondents' counsel.

Petitioner now moves for judgment notwithstanding the verdict pursuant to CPLR 4404(a). According to petitioner's counsel, there is no valid line of reasoning and permissible inferences which could lead a rational jury to the conclusion reached herein. According to petitioner's counsel, the trial did not raise issues of credibility regarding any testimony of drug-related criminal activity. Rather, petitioner's counsel argues that the stipulated facts clearly established drug-related criminal activity at the premises which respondents did not refute. Further, petitioner's counsel argues that courts have upheld the eviction of HUD tenants for drug-related criminal activity in situations involving single instances of drug activity even if limited to personal use and even where tenants had no knowledge of drug related activity by other tenants, household members or guests.

In opposition to the motion, respondents' counsel argues that there are at least four valid lines of reasoning and permissible inferences by which the jury could have reached its verdict based upon the evidence presented.

First, respondents' counsel maintains that the jury could have concluded that petitioner abused or failed to exercise its discretion in terminating the subject tenancy. Second, respondents' counsel maintains that the jury could have reasonably concluded that Aida Reyes did not breach the lease since she had no control over co-tenant Robert Encarnacion who was present in the apartment under petitioner's authority. Third, respondents' counsel argues that the jury could reasonably have rejected evidence that a drug-related crime occurred in the subject premises in light of the minor sentence that Robert Encarnacion received (e.g. five days community service). Lastly, respondents' counsel argues that the jury could have reasonably interpreted the question set forth on the verdict sheet requiring them to determine that all of the named respondents violated the lease.

In reply to respondents' opposition and in further support of the motion, petitioner's counsel contends that respondents' arguments are refuted by both the law and the facts of the case. Particularly, petitioner's counsel argues that federal law does not mandate landlords to consider discretion or mitigating factors when terminating a tenancy for drug abuse or other criminal activity. Moreover, petitioner's counsel reiterates his argument that courts permit the eviction of HUD tenants for drug-related criminal activity by household members and guests, regardless of whether or not the tenant was aware of such activity.

DISCUSSION

CPLR 4404(a) provides, in pertinent part, that: "[a]fter a trial of a cause of action or issue triable of right by a jury, upon the motion of any party or on its own initiative, the Court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law . . . where the verdict is contrary to the weight of the evidence . . ."

In order for a party to be entitled to judgment as a matter of law pursuant to CPLR 4404(a), a court must "first conclude that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial" (Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). The standard for determining whether a verdict is contrary to the weight of the evidence is if the evidence "so preponderate[s] in favor of the [movant] that [the verdict] could not have been reached on any fair interpretation of the evidence" (Grassi v Ulrich, 87 NY2d 954, 956 [1996]; Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995] [internal quotation marks and citations omitted]).

42 USC §1437(d)(l)(6) provides that: "[e]ach public housing agency shall utilize leases which 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."

The U.S. Supreme Court held in Department of Hous. & Urban Dev. v Rucker, 535 US 125 (2002), that the aforementioned statute explicitly requires lease terms which provides public housing authorities with discretion [*4]to evict tenants for drug-related activity of household members or guests, regardless of whether the tenant knew, or had reason to know, of such activity.

The tenant in Rucker challenged a lease provision which allowed the public housing authority to evict a tenant for drug-related criminal activity regardless of whether or not the tenant was able to control or had knowledge of such activity. However, the Court rejected such argument stating that:

"[i]t is not absurd that a local housing authority may sometimes evict a tenant who had no knowledge of the drug-related activity. Such no-fault eviction is a common incident of tenant responsibility under normal landlord-tenant practice. Strict liability maximizes deterrence and eases enforcement difficulties" (id. at 134 [internal quotation marks and citations omitted]).

Therefore, the fact that there was no evidence presented at trial that respondents Aida Reyes, Michael Encarnacion and Lydia Reyes were involved in any criminal activity or that Aida Reyes had any knowledge of such activity is of no consequence with respect to the propriety of petitioner's decision to terminate the lease (see Department of Hous. & Urban Dev. v Rucker, supra; Matter of Syracuse Hous. Auth. v Boule, 265 AD2d 832 [4th Dept 1999]).

As petitioner's counsel correctly contends, the trial did not raise issues of witness credibility regarding any testimony concerning whether or not drug-related criminal activity occurred at the subject premises. Here, the parties stipulated that the police recovered crack cocaine from the shared bedroom of Robert and Bryan Encarnacion, which was subsequently field-tested positive. The gravamen of respondents' counsel's opposing arguments is that such arguments are based on matters not in evidence and contrary to the law and facts of the case.

Although the HUD Occupancy Handbook lists factors for landlords to consider in determining whether to evict a tenant for drug-related criminal activity (see Court Exhibit 2), respondents' counsel was unable to affirmatively state that such guidelines were mandatory when asked by the Court. Particularly, respondents' counsel responded "I believe they should be mandatory" when the Court asked "the guidelines you're referring to, they are not mandatory. Is that fair to say?" (Transcript, p. 89, lines 13-17)

Moreover, the Appellate Division, Fourth Department indicated in Matter of Syracuse Hous. Auth. v Boule, supra at 833, that "[p]ursuant to HUD's regulations and policy, petitioner has discretion to consider mitigating circumstances and that flexibility is incorporated into respondent's lease. Petitioner, however, is not bound to exercise its discretion and consider mitigating factors." (internal quotation marks and citations omitted)

Here, as petitioner's counsel correctly contends, petitioner was only required to prove a breach of paragraph 23(c) by a preponderance of the evidence. The evidence presented at trial clearly established drug-related criminal activity at the premises, and that such activity constituted a breach of the lease entitling petitioner to terminate the lease. Further, the legal authority which respondents' counsel cites in his opposing papers are neither binding on this Court nor applicable to the circumstances presented. As such, there is no valid line of reasoning and permissible inferences which could possibly lead to the verdict herein.

Therefore, the Court grants petitioner's motion for judgment notwithstanding the verdict. Accordingly, a judgment of possession is awarded in favor of petitioner and against the respondents. Issuance of the warrant is forthwith. Execution of the warrant is stayed for ten days.

In light of the fact that respondents have resided at the premises for a considerable length of time, the Court will entertain an application by respondents for an additional stay to allow respondents sufficient time to vacate the premises on the condition that respondents pay use and occupancy to petitioner. At this juncture, the Court is unable to render any determination as to the value of the use and occupancy of the premises.

The Clerk is directed to enter judgment accordingly.

This constitutes the decision and order of the Court.

Dated:New York, New York

October 22, 2009

___________________________________

Judge of the Civil Court Footnotes

Footnote 1:Counsel appeared for respondents Aida Reyes, Michael Encarnacion, Lydia Reyes and Bryan Encarnacion. The respondent Robert Encarnacion did not appear in this proceeding.