New York City Hous. Auth. v Williams

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[*1] New York City Hous. Auth. v Williams 2010 NY Slip Op 51475(U) [28 Misc 3d 1223(A)] Decided on July 21, 2010 Civil Court Of The City Of New York, Bronx County Alterman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 21, 2010
Civil Court of the City of New York, Bronx County

New York City Housing Authority, Petitioner,

against

Detra Williams, Respondent, "JOHN AND JANE DOE" Respondent-Undertenants.



L & T 53380/07



Attorneys for Petitioner:

New York City Housing Authority

250 Broadway Room 7009 New York, New York 10007

Dennis J. Ng, Esq.

Attorneys for Respondents:

Legal Services for New York - Bronx

329 East 149th Street

Bronx, New York 10451

Jonathan Levy, Esq.

Ava Alterman, J.



This is a holdover proceeding commenced pursuant to RPAPL §§711(5), 715(1) and RPL §231(1). The underlying notice of termination alleges illegal narcotics-related activity. A trial was held before this court during which petitioner and the named respondent were represented by counsel. There was no appearance by "John and Jane Doe."

It is undisputed that on August 10, 2006, New York City Police Detective Michael Federici recovered from the respondent's bedroom, a loaded handgun and approximately 300 small glassine and ziplock bags, many of which were later tested and found to contain a total of 1/8 oz + 0.2 grains of heroin and 1/8 oz + 4.5 grains of cocaine. Leon Jackson, an individual who does not live in the subject apartment and who was not named as a respondent herein, was arrested at the scene. Respondent Detra Williams was later arrested at the apartment when she arrived home from work.

Ms. Williams credibly testified that she was a working single mother of two children, who were 10 and 12 years old at the time. During the summer of 2006, her sister generally watched her children when she went to work. When her sister was unavailable, the respondent had to resort to asking neighbors to watch her children during working hours. One such neighbor was Leon Jackson, who lived with his mother in the same building. Other parents in the building also allowed him to watch their children in the playground, take them to action parks, movies and dinner.

Respondent testified that Mr. Jackson did not live in her apartment, that he did not have keys to her apartment and that he watched her children approximately six or seven times during that summer.

Leon Jackson testified, candidly and credibly, that on the day of his arrest, he was at respondent's apartment to watch her children while she was at work. He kept his narcotics and [*2]his gun in a sneaker box which he carried with him. Ordinarily, he packaged narcotics in the emergency stairwell of his building and sold drugs "down the block." That morning, however, he brought the sneaker box into the respondent's bedroom to package cocaine. At approximately 11:00 a.m., he left the apartment. He stored his drugs in the bedroom, and to protect the children, put his gun in the dresser drawer and locked the bedroom door. He was arrested upon his return to the apartment at approximately 11:35 a.m., with $500 in his pocket.

He also testified that he did not live in the respondent's apartment, that he did not have keys to her apartment and that he watched her children approximately eight times during that summer.

"Pursuant to RPAPL 711[5] and Real Property Law 231[1], the landlord has the burden to prove by a preponderance of the credible evidence that the subject premises were used to facilitate trade in drugs and that the tenant knew or should have known of the activities and acquiesced in the illegal drug activity in the apartment [citations omitted]" (855-79 LLC v Salas, 40 AD3d 553 [2nd Dept 2007]).

Respondent's tenancy in this building, which is owned and operated by the New York City Housing Authority (NYCHA), is governed by the United States Housing and Urban Development (HUD) rules and regulations. Paragraph 12(r) of the lease prohibits respondent, any member of her household, any guest and any person under her control from engaging in drug related criminal activities. Federal law and HUD regulations require NYCHA to include such a term in the lease (Department of Housing and Urban Development v Rucker, 535 US 125 [2002]). "The statute does not require [emphasis in original] 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 violent crime, [citation omitted]' the seriousness of the offending action, [citation omitted' and the extent to which the leaseholder has ... taken all reasonable steps to prevent or mitigate the offending action, [citation omitted]'" (Department of Housing and Urban Development v Rucker, 535 US 125, 132 [2002]).

Pursuant to the terms of a federal consent decree in effect for 25 years, NYCHA had been prohibited from commencing a summary eviction proceeding for non-desirability (including drug related activity) without first affording the tenant an administrative hearing (Escalera Decree) (Escalera v NYCHA, 425 F2d 853 [2nd Cir 1970](No. 67 Civ 4307[WRM], SD NY, March 23, 1971)).

In response to the burgeoning drug trafficking epidemic and its related crime and violence, NYCHA moved to modify the Escalera Decree to allow it to proceed directly pursuant to RPAPL §§ 711(5) and 715 (Bawdy House Law). Although the Escalera Decree and the Bawdy House Law addressed the same problems of illegal drug activity, NYCHA, "in order to evict drug-trafficking tenants, unambiguously agreed to adopt a different set of procedures and a different legal theory from those adopted by the Bawdy House Law" (Escalera v NYCHA, 924 F Supp 1323, 1337-1338 [SD NY 1996]). NYCHA's Memorandum of Law in support of the motion indicated it was seeking " to proceed directly under the Bawdy House Law in that narrow category of cases where the tenant of record participates or acquiesces in the use of a public housing apartment for drug trafficking'" (Id at 1335). Thus a modification was required, and was granted, allowing NYCHA to commence summary proceedings pursuant to RPAPL§§711(5) and [*3]715.

NYCHA has a choice of terminating a tenancy through its administrative procedures under the Rucker "strict liability" standard or bringing a statutory proceeding under the Bawdy House Law. Having chosen to proceed directly, pursuant to this statute, the appropriate standard under New York State case law is "knew or should have known" about ongoing illegal activity (Grillasca v NYCHA, 2010 WL 1491806 [SD NY]; NYCHA v Grillasca, 18 Misc 3d 524 [Civ Ct, NY County 2007]; NYCHA v Lipscomb-Arroyo, 19 Misc 3d 1140(A) [Civ Ct, NY County 2008]) .

Petitioner must show that the apartment "was utilized as a focal point for drug activity" (Riverview Apts., Inc. v Guzman,NYLJ, Feb. 13, 1991, at 21, col 2 [App Term, 1st Dept]; 137 Realty Assocs. v Samuel, 7 Misc 3d 80, 82 [App Term, 1st Dept 2005]). Use of the premises for illegal purposes implies doing of something customarily or habitually upon the premises (Grosfeld Realty Co. v Lagares, 150 Misc 2d 22 [App Term, 1st Dept 1989]; 137 Realty Assocs. v Samuel, 7 Misc 3d 80, 82 [App Term, 1st Dept]).

"It is not necessary that the tenant actually participate in the illegal activity;" but illegal activities that persist over a long period of time (Matter of 88-09 Realty, LLC v Hill, 305 AD2d 409 [2nd Dept 2003]) or recovery of a substantial amount of drugs and paraphernalia throughout the apartment may give rise to an inference that the tenant knew or should have known of the illegal activity (New York County District Attorney's Office v Pizzaro, NYLJ, June 24, 1993, at 24, col 6 [App Term, 1st Dept]).

There is no allegation that respondent participated in or had any actual knowledge of any illegal drug-related activity or that she was the subject of any criminal investigation. No criminal charges were pursued against her. The question is whether any inference can be drawn that the apartment was being used for an illegal activity on an ongoing basis and whether respondent should have known about such activity.

Absent from the apartment were most of the items ordinarily associated with ongoing drug manufacturing or sales, such as: scales, heat sealers, safes, substances used to cut drugs, large amounts of cash or any amount of prerecorded buy money. The evidence seized had been located in only one out of the three bedrooms and on Mr. Jackson's person, and not spread throughout various locations in the apartment. The few items found can and were easily transported in and out of the apartment by Mr. Jackson in a shoe box.

Other indicia of ongoing illegal drug activities were also lacking. There was no evidence of any unusual traffic in and out of the apartment. There were no complaints from tenants or other members of the community about any illegal activities involving the apartment or occupants of the apartment. There was no evidence of any drug sales in the apartment. Nor were there any prior arrests for drug-related offenses in the apartment. There was no evidence to show a customary or habitual pattern of criminal activity in the apartment.

It is a common practice in illegal drug proceedings returnable in Part Z to name and serve as respondents, all persons who were arrested in the apartment in connection with the alleged illegal activity. It is noteworthy here, that Mr. Jackson was not named as a respondent and there are no allegations in the petition that he had any possessory interest in the premises. There was no evidence to show that he had ever been in the apartment other than on a few occasions.

Although the notice of termination alleges that certain criminal charges were brought [*4]against Mr. Jackson, petitioner did not provide proof of the disposition of any criminal complaint. Mr. Jackson testified merely that he "did time for possession."

Respondent testified credibly that after Mr. Jackson's arrest he has not been back to her apartment, nor is he allowed back in the apartment. Petitioner has produced no evidence either that he has returned or that there has been any illegal activity of any kind in the apartment since the date of the arrest.

Respondent interposed a written answer, alleging two specific defenses: that there was no nexus between any alleged illegal drug activity and the apartment and that respondent did not know of or acquiesce in any illegal drug activity.

Petitioner's entire claim rests solely upon the contraband belonging to a non-occupant, found on one occasion in one location in the apartment. The evidence was obtained upon the execution of a search warrant. "Warrants may be issued only after a factual showing sufficient to establish reasonable cause [CPL §690.35(3)]. But these predicate facts, often vital to establish the use of the premises for illegal purposes, are never presented to this Court... This Court can appreciate the policy considerations which makes the District Attorneys Office reluctant to reveal sources or possibly expose undercover operations. While this Court might infer that something must have been happening with this apartment for the police to get a warrant, speculating what that might be and how it might impact on the claims of the parties would be total guess work. Basic due process requires that facts be established by evidence in the record, not rank speculation and conjecture" (Clifton Court, Inc. v Williams, NYLJ, August 15, 1996, at 25, col 5 [Civ Ct., Kings County], affd, NYLJ, May 27, 1998, at 28, col 6 [App Term, 2nd & 11th Jud Dists]).

Petitioner has not shown by a preponderance of the evidence that the apartment was being used for any ongoing illegal activity. Any weak inference that may be drawn from Mr. Jackson's contraband, that he carried into respondent's apartment, has been sufficiently rebutted by respondent, a credible witness who was genuinely unaware and upset that Mr. Jackson had brought these items into her apartment, when he was supposed to be there watching her children. She testified credibly that she has been trying very hard to keep her life on track, working and going to school to get her GED diploma.

The evidence in this record does not preponderate in petitioner's favor, sufficient to warrant the eviction of respondent and her children pursuant to RPAPL §711(5), §715(1) or RPL §231(1).

The Clerk is directed to enter judgment dismissing the petition. Exhibits should be retrieved from the Clerk of Part Z. A copy of this decision is being mailed to both sides.

Dated: July 21, 2010

Bronx, New York

__________________________

Ava Alterman

JHC