Opinion
2002-04979
Argued February 27, 2003.
May 5, 2003.
In a summary proceeding to recover the possession of real property, the tenant Priscilla Hill appeals, by permission, from an order of the Appellate Term of the Supreme Court for the Second and Eleventh Judicial Districts, dated November 9, 2001, which reversed a judgment of the Civil Court, Queens County (Jackman-Brown, J.), dated November 16, 1999, in effect, dismissing the petition insofar as asserted against her, granted the petition, and awarded possession of the premises to the petitioner-landlord, 88-09 Realty, LLC.
April A. Newbauer, Kew Gardens, N.Y. (Elizabeth J. Newton of counsel), for appellant.
Horing Welikson Rosen, P.C., Williston Park, N.Y. (Debra Genetin of counsel), for petitioner-respondent.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Oscar W. Ruiz of counsel), amicus curiae pro se.
Before: MYRIAM J. ALTMAN, J.P., ANITA R. FLORIO, WILLIAM D. FRIEDMANN, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the order is affirmed, without costs or disbursements.
RPAPL 711(5) authorizes the commencement of a special proceeding to regain possession of leased premises where "the premises, or any part thereof, are used or occupied * * * for any illegal trade or manufacture, or other illegal business." It is not necessary that the tenant actually participate in the illegal activity; it is sufficient that "the acts and conduct complained of warrant the inference of acquiescence" (City of New York v. Goldman, 78 Misc.2d 693, 696; City of New York v. Rodriguez, 140 Misc.2d 467).
We agree with the Appellate Term that the landlord, 88-09 Realty, LLC, met its burden of establishing that the appellant's apartment was being used by the appellant's son and other acquaintances of the appellant for drug dealing and that their activities persisted over such a period of time and were the subject of complaints by people in the community as to give rise to an inference that the appellant knew or should have known of the activities, and acquiesced therein (see 1895 Grand Concourse Assocs. v. Ramos, 179 Misc.2d 508; 1021-27 Ave. St. John Hous. Dev. Fund Corp. v. Hernandez, 154 Misc.2d 141). The appellant failed to present any credible evidence to controvert this inference. Accordingly, the Appellate Term correctly awarded possession of the apartment to the landlord.
We note that since the Appellate Term analyzed this case under the established New York "knowledge and acquiesence" standard, we need not address the parties' contentions regarding the seemingly "strict liability" standard enunciated by the United States Supreme Court in Department of Housing and Urban Development v. Rucker ( 535 U.S. 125).
ALTMAN, J.P., FLORIO, FRIEDMANN and H. MILLER, JJ., concur.