Opinion
October 1, 1999
Appeal from Order of Onondaga County Court, Mulroy, J. — RPAPL.
Order and judgment unanimously reversed on the law without costs and petition granted.
Memorandum:
County Court erred in affirming the judgment of Syracuse City Court dismissing the petition under RPAPL article 7 to recover possession of respondent's apartment in a Federally-funded public housing project. Petitioner commenced the proceeding because respondent's babysitter and others had engaged in drug-related criminal activity on or near the premises while respondent was at work. We reject the contention of respondent that, because she was not aware of the drug-related criminal activity and did not consent to it, good cause did not exist for her eviction. Although respondent was not implicated in any criminal activity, she violated that section of her lease affirmatively requiring her to cause her "guests, persons at the Apartment and other persons on the Premises * * * to refrain from engaging in criminal activity, including drug-related criminal activity" (see, Memphis Hous. Auth. v. Thompson, ___ S.W.2d ___ [decided July 29, 1999]; City of S. San Francisco Hous. Auth. v. Guillory, 49 Cal.Rptr.2d 367; Housing Auth. of New Orleans v. Green, 657 So.2d 552, writ denied 661 So.2d 1355, cert denied 517 U.S. 1169). Contrary to the contention of respondent, she is not being punished for the conduct of others in violation of her constitutional right to due process and freedom of association (see, City of S. San Francisco Hous. Auth. v. Guillory, supra, at 372; see also, Chavez v. Housing Auth. of City of El Paso, 973 F.2d 1245, 1249; cf., Tyson v. New York City Hous. Auth., 369 F. Supp. 513). The subject lease provision is mandated by the United States Housing Act (see, 42 U.S.C. § 1437d [l] [6]), and it is consistent with the regulations of the United States Department of Housing and Urban Development (HUD) (see, 24 C.F.R. § 966.4 [l] [2] [ii] [B]) and HUD's "One Strike and You're Out" policy. By mandating that public housing leases contain language requiring tenants, under threat of eviction, to control the drug-related criminal activity of their guests, "Congress enacted a straightforward practical method of dealing with a serious public safety problem" (City of S. San Francisco Hous. Auth. v. Guillory, supra, at 371). Pursuant to HUD's regulations and policy, petitioner has discretion to consider mitigating circumstances (see, 56 Fed Reg 51566-51567), and that flexibility is incorporated into respondent's lease (see, Lease § V [B] [5] [a]). Petitioner, however, is not "bound to exercise its discretion and consider mitigating factors" (Allegheny County Hous. Auth. v. Liddell, 722 A.2d 750, 755).
PRESENT: PINE, J. P., HAYES, WISNER, SCUDDER AND BALIO, JJ.