Town of Oyster Bay Hous. Auth. v Garcia

[*1] Town of Oyster Bay Hous. Auth. v Garcia 2018 NY Slip Op 28024 Decided on February 5, 2018 District Court Of Nassau County, First District Fairgrieve, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on February 5, 2018
District Court of Nassau County, First District

Town of Oyster Bay Housing Authority, Petitioner,

against

Arismendy Garcia, Respondent.



LT-004845-16/NA



Ezratty, Ezratty & Levine, LLP, attorneys for Petitioner, 80 East Old Country Road, Mineola, New York 11501, (516) 747-5566; Michael Wigutow, Of Counsel

Jeffrey Seigel, Nassau/Suffolk Law Services Committee, Inc., attorneys for Respondent, One Helen Keller Way, Hempstead, NY 11550, (516) 292-8100.
Scott Fairgrieve, J.

The following named papers numbered 1 to 2 submitted on this Motion and Cross Motion on November 27, 2017

papers/numbered

Notice of Motion and Supporting Documents 1

Notice of Cross Motion and Supporting Documents 2

Opposition to Motion

Reply Papers to Motion

The petitioner commenced this holdover proceeding seeking "a final judgment of eviction, awarding to the Petitioner possession of the premises designated and described [as] all rooms at: 355-61 Newbridge Road, Hicksville, New York 11801... ." The petition also seeks a money judgment for the fair value of the respondent's use and occupancy in the amount of $1,452.00, and an award for attorneys' fees.

The respondent moves for an order granting him summary judgment dismissing the petition. The petitioner opposes the respondent's motion, and cross-moves for summary judgment. The parties' motions are determined as follows.

The petitioner, the Town of Oyster Bay Housing Authority, is a New York Public Housing Authority. The respondent resides in the federally subsidized public housing complex operated by the petitioner. Tenancies in said complex are governed under the United States Housing Act and regulations promulgated by the Secretary of the Department of Housing and Urban Development. In essence, the petitioner seeks to terminate based upon federal law which allows same for "drug-related criminal activity."

The petitioner served the respondent with a 30 day notice to terminate seeking to end his federally subsidized tenancy as of August 31, 2016. The termination was based upon the [*2]respondent's violation of the terms and conditions of the lease agreement. It is alleged in the 30 Day Notice that the respondent's behavior, that being his arrest for possession of cocaine, violated paragraph 9 of the lease, entitled "Tenant's Obligations", and disturbed the rights, safety, welfare and comfort of his neighbors.

Pursuant to Section (a) of paragraph 9:

"The Tenant... shall not engage in criminal activity that threatens the health, safety or right to peaceful enjoyment of the property by other residents or employees of the Authority.... Any drug related criminal activity, on or near the Housing Authority's premises, while the Tenant is a tenant in Public Housing, such criminal activity shall be cause for termination of tenancy.The term drug-related criminal activity means the illegal manufacture, sale, distribution, use, or possession with intent to manufacture, sell, distribute, or use, of a controlled substance."

The lease further provides, in pertinent parts of Paragraph 15, entitled "Lease Termination by the Authority":

"The Authority shall not terminate or refuse to renew the Lease other than for serious or repeated violation of material terms of the Lease, such as, but not limited to the following:l. any activity that threatens the health, safety or right to peaceful enjoyment of the premises by other Residents or employees of the Authority;n. any violent or drug-related criminal activity on or off the premises, not just on or near the premises."

It is uncontroverted that the respondent was arrested in early May of 2016, and charged with Criminal Possession of a Controlled Substance in the Seventh Degree. Then, on or about August 2, 2017, the respondent pled guilty to Attempted Criminal Possession of a Controlled Substance in the Seventh Degree. He received a conditional discharge, along with fines and a surcharge.

The petitioner contends that the language of the lease is clear. It maintains that mere possession of a controlled substance is sufficient to constitute a violation of the lease, which does not require a conviction or violent criminal action for the petitioner to seek terminate the lease. Therefore, since the respondent was arrested and subsequently pled guilty to a drug-related criminal act, the petitioner avers that it was obligated under the terms of the lease to terminate the respondent's tenancy. Hence, the petitioner asserts that it is entitled to summary judgment.

In support of his motion, the respondent disputes petitioner's interpretation of the definition of "drug-related criminal activity". His attorney argues that mere possession is not enough. Rather, counsel maintains that the subject language requires possession of a controlled substance with the intent to manufacture, sell, distribute, or use. Thus, respondent declares that attempted possession alone is insufficient to support termination of the lease.

In the matter of Bradford v. New York City Housing Authority, 34 AD3d 463, 824 NYS2d 350 (2nd Dept 2006), the petitioner tenant brought a CPLR Article 78 proceeding to annul the determination of the New York City Housing Authority that petitioner was ineligible for continued occupancy in public housing. Petitioner's behavior included an arrest for assault, including an ex-boyfriend, and possession of heroin. The Court sustained the termination that [*3]petitioner's continued tenancy at public housing was no longer allowed due to the drug possession, as stated:

"The tenant's plea of guilty to criminal possession of a controlled substance in the seventh degree was sufficient to support the hearing officer's determination (see Meades v Spinnato, 138 AD2d 579, 580 [1988]; CPLR 7803[4]). Further, the determination was not affected by errors of law (see CPLR 7803[3]; Matter of Gray v Adduci, 73 NY2d 741, 742 [1988]; Matter of BiCounty Brokerage S. Corp v State of NY Ins. Dept., 4 AD3d 470, 471 [2004]; see also 24 CFR 966.4 [l] [3] [i] [B] [2]; and the penalty of termination was not so disproportionate as to shock the conscience (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 232-233 [1974]; see generally Department of Housing & Urban Development v Rucker, 535 US 125 [2002]). Accordingly, we confirm the determination, deny the petition, and dismiss the proceeding. Miller, J.P., Ritter, Rivera and Lifson, JJ., concur."

In the Matter of Bell v. New York City Hous. Auth., 49 AD3d 284, 853 NYS2d 43 (1st Dept 2008), the Court sustained the determination that tenant was ineligible to continue occupancy at public housing based upon his guilty plea to criminal possession of a controlled substance in the seventh degree in 2003, and further evidence that a detective in 2004 saw the tenant holding a gun and found drugs and drug paraphernalia in the apartment. At the hearing, the hearing officer credited the detective's testimony about the 2004 incident. The hearing officer also considered the underlying police documents in reaching its determination. The 1st Dept ruled that the hearing officer could consider the foregoing evidence concerning the 2004 incident even though the criminal charges were pending at the time of the hearing. The subsequent dismissal of the criminal charges did not affect the termination of the tenancy.

In Lakota Community Homes, Inc. v. Randall, 675 NW2d 437 (Sup Ct of South Dakota, 2004), the Court held that under Federal regulations, criminal charges or convictions are not necessary for a court to find that a tenant may be evicted for drug related activity. In other words, the court may consider testimony and other evidence to reach a determination concerning eligibility. The following lays out the governing principles for an evidentiary hearing:

"Under these regulations, it is not necessary for a tenant to be either charged or convicted of a criminal act. Here, evidence was presented that Mesteth participated in the vandalism to the automobile. LCH also presented evidence that Mesteht's alcohol abuse resulted in behavior that threatened the health, safety, and right to a peaceful enjoyment of the premises by other residents. Finally, LCH presented evidence that Mesteths was engaged in the illegal use of drugs. These allegations were the basis for LCH's determination that it was prudent to evict Randall. Even one of the allegations, if proven, would have been sufficient to justify eviction. See CFR 966.4(l) (5) (alcohol abuse); CFR 966.4(l)(B) (illegal use of drug); CFR 966.4(l) (A) (criminal activity threatening right to peaceful enjoyment by other tenants)."

This court finds that Respondent's plea of guilty to attempted possession of a controlled substance is not sufficient for termination of the tenancy. An arrest, in and of itself, is not evidence of criminal activity that can support termination. "The conduct, not the arrest, is what is relevant for admissions and tenancy decisions" (see U.S. Department of Housing and Urban [*4]Development Office of Public and Indian Housing Notice PIH 2015-19 p3[4]).

However, a hearing is warranted to determine whether Respondent did in fact possess drugs in violation of the Lease and Federal Policy. It appears to the court that a plea bargain was reached in order to dispose of the criminal charges. This plea bargain is not binding on this court. The above cases demonstrate that criminal charges, or conviction, are not necessary to determine if the alleged offending conduct constitutes grounds for termination of the lease. This court will hear the relevant testimony and review any admissible documents to determine if in fact Respondent should be removed from the premises.

Based upon the foregoing, both the motion and cross motion are denied.

This matter is set down for a hearing on February 27, 2018 at 2:00 p.m. on all issues before the undersigned.

The foregoing constitutes the decision and order of this court.

Dated: February 5, 2018

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE