Opinion
19793/15
09-29-2016
New York City Housing Authority, ("Lexington Houses"), Petitioner-Landlord v. Kimberly Fashaw, Respondent-Tenant "JOHN DOE" and "JANE DOE" Respondents-Subtenants- Occupants
David I. Farber for Petitioner-NYCHA Neighborhood Defender Services of Harlem for Respondent-Kimberly Fashaw
David I. Farber for Petitioner-NYCHA Neighborhood Defender Services of Harlem for Respondent-Kimberly Fashaw Anne Katz, J.
Respondent, Kimberly Fahsaw ("respondent"), by her attorneys, moves this Court for an Order dismissing the within summary holdover proceeding based upon petitioner's ("NYCHA") failure to sustain its prima facie case for eviction pursuant to RPL§231(1), RPAPL §711(5) and RPAPL § 715. Respondent, initially entered into a lease for the premises located at 1539 Lexington Avenue, Apartment 11D, New York, New York 10029 ("subject premises"), with NYCHA in or about 1999. NYCHA seeks to recover the subject premises as it alleges that respondent and others acting with respondent's knowledge, permission or acquiescence, have been using and occupying the subject premises unlawfully for an illegal trade or business, to wit, the possession and sale of controlled substances in violation of Article 220 of the Penal Law of the State of New York.
On or about October 29, 2015, NYCHA received correspondence from the District Attorney, County of New York, which directed petitioner to commence the within proceeding. The District Attorney's request stemmed from RPAPL§715 which gives, an authorized enforcement agency, under the duty to enforce the provisions of the penal law, or any state or local law, the ability to serve an owner or landlord, written notice which requires the owner or landlord to make an application for the removal of person using the premises for any illegal trade, business or manufacture. Under RPL§231(1) whenever the lessee or occupant other than the owner of any building or premises, shall use or occupy the same for illegal trade, manufacture or other business, the lease or agreement for the letting or occupancy of such building or premises, or any part thereof shall thereupon become void, and the landlord of such lessee or occupant may enter upon the premises so let or occupied. Additionally, RPAPL §711(5), allows a landlord to maintain a special proceeding, such as the proceeding herein, upon the grounds that the premises, or any part thereof, are used or occupied for purposes of any illegal trade, manufacture or other illegal business.
Factual Background
Respondent is the tenant of record of the subject premises and has resided at the subject premiss since 1999. Charles Fashaw ("Fashaw") is the brother of respondent and is not listed as an occupant on respondent's family composition. The subject premises is part of a public housing project owned and operated by petitioner, the New York City Housing Authority ("NYCHA"). On September 30, 2015, a search warrant was issued which targeted the subject premises for illegal activity and named Fashaw as a target suspect. On October 6, 2015 at approximately 6:50 a.m., the New York City Police Department executed a search warrant at the subject premises. At the time the warrant was executed, respondent, Fashaw and respondent's daughter were present at the subject premises. Fashaw was arrested at the subject premises and pled guilty to criminal possession of a controlled substance in the third degree. Respondent was also arrested at the subject premises, however, respondent's arrest was subsequently voided and respondent was not charged with any crime.
On June 27, 2016 the Court tried the case. NYCHA called two witnesses on its behalf. NYCHA's first witness was Police Officer Brandon Velez ("Officer Velez"). Officer Velez testified that he has worked for the New York City Police Department for about 34 years and he has been assigned to the 23rd precinct, where the subject premises is located, for approximately three years. Officer Velez testified that he was familiar with the subject premises as he executed the search warrant. Officer Velez testified that prior to obtaining the search warrant, he investigated the subject premises for approximately three to four weeks and that a confidential informant made two day time drug buys at the subject premises. After the two controlled drug buys, Officer Velez went before a Judge, swore out a search warrant, and Officer Velez personally executed the search warrant. Officer Velez testified that police recovered several cell phones which belonged to Fashaw, a baggie with marijuana residue, six zip lock bags of cocaine, empty baggies, one rock of cocaine, a scale, a razor blade and $780.00 in U.S. currency. Officer Velez also testified that the drugs and paraphernalia seized at the subject premises were found in the hallway closet, out of plain vew and/or were concealed in the handle of a jump rope, a jacket pocket and bag. All of the belongings which contained the drugs and related paraphernalia belonged solely to Fashaw. Officer Velez testified that aside from the narcotics and related paraphernalia, Officer Velez also recovered mail belonging to Fashaw and photographs of Fashaw with people that lived at the subject premises. Officer Velez testified that Fashaw was charged with intent to sell and, as stated above, pled guilty to criminal possession of a controlled substance in the third degree, a "B" felony. On cross examination of Officer Velez, counsel for respondent confirmed that respondent was not named as the subject of the search warrant and that Fashaw was the only person charged with a crime related at the subject premises.
NYCHA then called Gregory Brown ("Brown") as a witness. Brown is currently employed by NYCHA and assigned to Lexington Houses. Brown testified that respondent is the tenant of record of the subject premises pursuant to a lease with NYCHA.
At the conclusion of Brown's testimony and after counsel for NYCHA rested its case, counsel for respondent made an oral application to dismiss the within proceeding for failure of NYCHA to sustain its prima facie case. Counsel for respondent argued that NYCHA did not meet its burden to prove customary habitual use of the subject premises for purported illegal activity and/or knowledge and/or acquiesce on the part of respondent. Counsel for respondent argued that the date of the arrest warrant, a single isolated incident, did not constitute customary habitual use of the subject premises for purported illegal activity. Counsel for respondent also argued that NYCHA's evidence which included testimony from Officer Velez and Brown; the arrest report, the certified lab report; the certificate of disposition; and the lease only proved that Fashaw was arrested and pled guilty to possession of a controlled substance, not that respondent had any knowledge of or acquiesced in the alleged illegal activity at the subject premises. Counsel for respondent argued, that it was clear from the testimony, that the amount of drugs and paraphernalia found was small, solely within Fashaw's personal belongings, were not in plain view and were easily transported in a bag, jacket and jump rope handle, all which negated knowledge and/or acquiescence on behalf of respondent. Counsel for respondent lastly pointed out that there was no other usual indicia of drug activity and reiterated the fact that respondent was not targeted, respondent was not the subject of the police investigation and respondent was not charged with any crime.
Petitioner's Prima Facie Case
1. Illegal Use of Subject Premises
Although this Court found the testimony of Officer Velez to be credible, the overwhelming evidence did not establish that the subject premises were a "customary and habitual" location of an ongoing illegal trade or business. To warrant eviction based upon the use of premises for illegal activity, "use" implies doing something customary or habitual upon the premises. 855-79 LLC v. Salas, 40 AD3d 553, 554, 837 N.Y.S2d 631, 632-33 (App. Div. 1st Dept. 2007) citing 1201-27 Ave. St. John Hous. Dev. Fund Corp. V. Hernandez, 154 Misc 2d 141, 145 (Civ. Ct. Bronx 1992). In order to prevail under RPAPL §711 (5) and RPAPL§715, NYCHA had to prove that the subject premises had been used not just once or twice but customarily or habitually for an illegal trade or business. NYCHA v. Grillasca, 18 Misc 3d 524, 852 N. Y. S. 2d 610 (Civ. Ct. NY 2007). Such a strong showing of customary and illegal use is required as the Court must be able to determine that the illegal activity justifies the forfeiture of a valuable leasehold. See Grillasca, supra. As Officer Velez testified that there were only two controlled buys, one search warrant, the amount of drugs recovered was small and there was no testimony as to high traffic in and out of the subject premises, it is clear that NYCHA failed to prove a "customary and habitual" illegal trade as required by case law.
The within proceeding can be differentiated from People v. Freeman, 106 AD3d 590 (1st Dept 2013) and People v. Daley, 281 AD2d 244 (1st Dept. 2001) both cited by NYCHA to prove that a customary illegal trade took place at the subject premises. In Freeman, a criminal proceeding where a jury trial was held, the Appellate Division affirmed defendant's conviction and held that an ongoing, continuous enterprise with a nexus to the apartment existed when six controlled buys were conducted over the period of many months. Unlike Freeman, in the case at bar, only two controlled buys were conducted in a period of 3-4 weeks which, this court believes, falls short of establishing the ongoing, continuous enterprise with a nexus to the apartment found in Freemen. Moreover, although the defendant in Freeman also argued that the quantity of drugs recovered was too small to establish his intent to sell, in affirming the guilty verdict, the Appellate Division noted that the defendant was a second time convicted drug felon, previously convicted of a violent crime, who attempted to swallow and/or flush additional drugs down the toilet. Therefore, in affirming defendant's guilty plea, the Court was justified to look at the presence of other factors in addition to the small amount of drugs recovered to conclude that the defendant was packaging drugs for sale. In the case at bar, there was no testimony that Fashaw had a prior drug felony, that Fashaw destroyed or attempted to destroy additional drugs and therefore the circumstances under the two cases do not justify the same outcome.
The case of Daly also cited by petitioner, can also be distinguished from the proceeding herein as Daly was also a second time felon who possessed 32 separate packs of cocaine. In the case at bar only a small amount of cocaine was recovered from the subject premises and there was no testimony to indicate Fashaw was a convicted drug felon or had other incidents with regard to the sale of narcotics.
Lastly, this case is distinguishable from Kings County Dist. Attorney's Office. Underwood, 143 Misc 2d 956, 968 (Civ. Ct. 1989) where the Court determined that any reasonable person could believe that drugs were for sale when 193 vials of cocaine were found along with a 9 mm machine gun, a pistol with shells and other guns. As stated herein, only a small amount of drugs were recovered and there was no testimony to indicate that any guns were recovered from the subject premises. In fact, it is questionable whether the amount of drugs recovered from the subject premises were for "trade, manufacture or business" or drugs which were recovered for personal use. Although the use of drugs is illegal, personal use of drugs, even within the premises, does not constitute an illegal use of the premises for purposes of RPL §231 and RPAPL §715, in order to forfeit a leasehold, as such activity does not amount to commercial enterprise. Normady Realty v. Boyer, 2 Misc 3d 407, 773 N.Y.S.2d 186 (NY Civ. Ct. 2003). This Court finds the other authorities cited by NYCHA equally unpersuasive.
Although NYCHA argues that the guilty plea to the "B" felony is the ultimate proof that the narcotics and paraphernalia recovered constituted possession with intent to sell, neither the quantity of the contraband recovered inside the apartment, nor the possession charges brought against Fashaw warrant the conclusion that the subject premise was used as a focal point for drug activity or that such illegal use occurred customarily or habitually in the subject premises. Second Farms Neighborhood HDFC v. Lessington, 31 Misc., 3d 144(A) (App. Term 1st Dept 2011). Accordingly, this Court finds that NYCHA did not meet its burden to establish that there was a customary and habitual use of the subject premises for illegal activity.
2. Respondent's Knowledge and/or Acquiescence
Even if NYCHA was able to prove the illegal use of the subject premises by Fashaw, NYCHA failed to meet its burden and prove that respondent had knowledge or acquiesced in any alleged illegal activity at the subject premises. Respondent is only liable for the acts committed in the leased property by Fashaw if respondent had knowledge of and/or acquiesced to the use of the subject premises for the illegal activity, 1895 Grand Concourse Assoc. V. Ramos, 179 Misc 2d 508 (NY Civ. Ct. 1988) and the landlord has the burden to prove, by a preponderance of the evidence, that respondent knew or should have known of the illegal activities and acquiesced therein. 855-79 LLC v. Salas, 40 AD3d 553, 554, 837 N.Y.S2d 631, 632-33 (App. Div. 1st Dept. 2007). In the absence of actual knowledge or acquiescence, a finding of respondent's knowledge or acquiescence could be inferred if the drugs and/or related items were recovered in plain view or if the drug activity in the apartment was so extensive or pervasive that respondent could not have been reasonablely unaware of it. 210 West 29th St. Corp. V. Scenic Office Parks, Inc., N.Y.L.J. 5/22/00, 24:6 (App. Term 1st Dept). The testimony and evidence adduced at trial fell short of proving that the alleged illegal activity was so extensive or pervasive such that the respondent could not have been reasonably unaware of the activity. The testimony elicited from Officer Velez was that the drugs and paraphernalia were concealed, easily transportable and there was no testimony to show a heavy flow of traffic in and out of the apartment. There was also no testimony elicited from Officer Velez to indicate that respondent was present at the subject premises during either of the controlled buys.
As respondent was not the target of the search warrant nor was respondent charged with a crime and there were no drugs or related items found in plain view of respondent's possession, NYCHA cannot prove knowledge and/or acquiescence on the part of respondent. In fact, the concealment of the drugs and paraphernalia actually negated the inference that respondent had knowledge or acquiesced. Village Mgmt. Corp. V. Grant, N.Y.L.J. Jan. 19, 1996, p. 25, col.2 (App. Term 1st Dep't 1996. Accordingly, NYCHA failed to meet its burden of showing respondent's constructive knowledge of illegal activity of Fahsaw. NYCHA Chelsea-Elliott Houses. V. Rumph, Index No . 15283/14 citing Grillasca, supra. The record was completely devoid of any testimony which would therefore lead this court to believe that the respondent otherwise.
Conclusion
Pursuant to CLR§3211(a)(7) a party may move for judgment dismissing one or more causes of action asserted against him on the ground that a pleading fails to state a cause of action. When considering a 3211(a)(7) motion the pleading is to be afforded a liberal construction in favor of movant and all facts as alleged in pleading shall be deemed true. Leon v. Martinez, 84 NY2d 83, 638 N. E. 2d 511, 614 N. Y. S. 2d 972 (1994). In order to meet its burden and prove its prima facie case for an eviction pursuant to RPL 231(1) and RPAPL 711(5) and RPAPL §715 , petitioner must prove that the alleged use of the subject premises constituted an illegal trade or business and the tenant knew and/or acquiesced in the illegal use of her apartment. Normady Realty Inc. V. Boyer 2 Misc., 3d 407, 410 (Civ. Ct Bronx 2003) citing Howard Ave Assoc. V. Rojas, NYLJ Apr. 5 2002 at 20 col 6 (Civ Ct Kings Co. 2002). For the reasons stated above, petitioner failed to do so. The eviction of respondent who has no knowledge or involvement of the alleged illegal acts conducted at the apartment does not serve the purpose of the narcotics eviction program. See Salas, supra. Accordingly, respondent's motion to dismiss pursuant to CLR§3211(a)(7) is granted. Petition is dismissed.
This constitutes the Decision/Order of the Court. Dated: September 29, 2016 New York, New York