Opinion
LT-901837/16
05-24-2017
Samayoa LLC, Petitioner-Landlord, v. Lancelot Nelson d/b/a CLASSIQUE JEWELRY AND ACCESSORIES, Respondent-Tenant, "JOHN DOE", "JANE DOE" and/or "ABC CORP.", Respondents-Undertenants.
Petitioner-Landlord Samayoa LLC ("Landlord") commenced this summary proceeding pursuant to RPAPL 711 and RPL 231 for possession of the commercial premises at 4262A White Plains Road a/k/a 4520-4280 White Plains Road (the "Premises"), alleging that Respondent-Tenant Lancelot Nelson ("Tenant") used, or permitted to be used, the Premises for an illegal trade or business. Before the Court is Tenant's motion for summary judgment dismissing the Petition which, for the reasons set forth below, is denied.
BACKGROUND FACTS AND PROCEDURAL HISTORY
The Petition alleges the following: On or about August 17, 2016, the New York City Police Department ("NYPD") executed a search warrant at the Premises (Petition ¶ 10b, Exh A). Officers recovered: (1) packaged in clear plastic bags, several hundred tablets and pills, later determined to be controlled substances; (2) $1,205.00 in United States currency; (3) a black plastic bag; and (4) documents in Tenant's name issued by New York state agencies (Petition ¶ 10c-d, Exhs B-C). The NYPD arrested Tenant, who was present at the search, and subsequently charged him with numerous violations of the Penal Law, including multiple charges of possession of a controlled substance and possession with intent to sell (Petition ¶ 10e, Exh D). On or about October 27, 2016, the Bronx County District Attorney's Office notified Landlord of its belief that the Premises were being used to facilitate the illegal sale of controlled substances and requested that Landlord commence an eviction proceeding (Petition ¶ 10g, Exh E; RPAPL 711, 715).
In his Answer, Tenant asserted a general denial and several affirmative defenses, one of which is that this action is defective for seeking to terminate the tenancy without a predicate notice of termination. Tenant now moves for summary judgment relying on that affirmative defense, and because there is no triable issue of fact as to whether Tenant used the Premises, or permitted them to be used, for an illegal purpose.
In opposition, Landlord argues first, that, in an illegal use proceeding, no termination notice or date of termination is required in the pleadings; and second, that for summary judgment purposes, the Petition has sufficiently alleged Tenant's connection to an illegal trade or business. In reply, Tenant draws a distinction between the requirements for "voiding" a tenancy for illegal use pursuant to RPL 231 and "termination" of the tenancy, and argues that Landlord's use of the latter lacked a Notice of Termination. Tenant also argues that Landlord has not satisfied the requirements of RPL 231 because a single arrest for possession of controlled substances is insufficient to demonstrate illegal use of the Premises, or to create a presumption of illegal use.
DISCUSSION
Addressing the parties' procedural arguments first, Respondent's contention that a Notice of Termination was required in this action is without merit. RPL 231(1) serves as the statutory basis for voiding a tenancy based on illegal activity:
Whenever the lessee or occupant other than the owner of any building or premises, shall use or occupy the same, or any part thereof, for any 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 (emphases added).
Absent a rent-stabilized or federally-subsidized tenancy, an illegal use proceeding commenced under RPAPL 711(5) is statutory, not a holdover proceeding based on an existing lease, and therefore does not require a predicate termination notice (New York County Dist. Attorney's Off. v Oquendo, 147 Misc 2d 125, 130 [Civ Ct NY County 1990]; New York City Hous. Auth. v Harvell, 189 Misc 2d 295, 296 [App Term 1st Dept 2001] [notice required pursuant to federal regulatory scheme]; see also Hudsonview Co. v Jenkins, 169 Misc 2d 389, 394 [Civ Ct NY County 1996] [finding that service of notice of termination, despite lack of requirement to do so, is "surplusage" which, through incorporation into the petition, provides "great notice in fact to the respondent"] ). RPAPL 715(1) and (4) reinforce the expedient nature of such proceedings, providing that a law enforcement agency may compel an owner to commence such a proceeding on similar grounds or, if an owner does not diligently prosecute the proceeding, permitting that agency to commence its own action and imposing penalties on the owner for non-compliance:
An owner or tenant of any premises within two hundred feet from other demised real property used or occupied in whole or in part for purposes of prostitution, or for any illegal trade, business or manufacture, [or] any duly authorized enforcement agency of the state or of a subdivision thereof, under a duty to enforce the provisions of the penal law or of any state or local law, ordinance, code, rule or regulation relating to buildings, may serve personally upon the owner or landlord of the premises so used or occupied, or upon his agent, a written notice requiring the owner or landlord to make an application for the removal of the person so using or occupying the same. If the owner or landlord or his agent does not make such application within five days thereafter; or, having made it, does not in good faith diligently prosecute it, the person, corporation or enforcement agency giving the notice may bring a proceeding under this article for such removal as though the petitioner were the owner or landlord of the premises, and shall have precedence over any similar proceeding thereafter brought by such owner or landlord or to one theretofore brought by him and not prosecuted diligently and in good faith. Proof of the ill repute of the demised premises or of the inmates thereof or of those resorting thereto shall constitute presumptive evidence of the unlawful use of the demised premises required to be stated in the petition for removal. ***
4. A court granting a petition pursuant to this section may, in addition to any other order provided by law, make an order imposing and requiring the payment by the respondent of a civil penalty not exceeding five thousand dollars to the municipality in which the subject premises is located and, the payment of reasonable attorneys fees and the costs of the proceeding to the petitioner. In any such case multiple respondents shall be jointly and severally liable for any payment so ordered and the amounts of such payments shall constitute a lien upon the subject realty (emphasis added.)
Because the Petition was initiated, at the District Attorney's prompting, pursuant to RPAPL 711(5), 715(1) and RPL 231(1), any termination was statutory and did not require a notice of termination.
Similarly, the Court also finds unavailing Tenant's attempts to challenge the Petition for stating that the lease between the parties was "terminated" rather than "void," as used in RPL 231. While the two terms have slightly different meanings — "to put an end to" versus "to annul," respectively (Black's Law Dictionary 10th ed. 2014) — tenant fails to explain, through citation to case law or otherwise, the effect of that distinction here. Whether this lease was "terminated" or "voided," the Petition's language and contents provided sufficient notice to Tenant that the landlord-tenant relationship had ceased, and of the statutory basis for cessation (cf Promise Prep Academy v JAZ, LLC, 144 AD3d 780, 781 [2d Dept 2016] [distinction between "null and void" and "terminate" was material to plaintiff's obligation to determine whether use of the premises was permissible] ).
Turning to Respondent's substantive contentions, Respondent argues that a single instance of possession of controlled substances alone is insufficient to maintain a summary eviction proceeding. This Court disagrees. Where a defendant is the proponent of a motion for summary judgment, the defendant must establish that the "cause of action ... has no merit" (CPLR 3212[b]) sufficient to warrant the court as a matter of law to direct judgment in its favor (Friedman v BHL Realty Corp., 83 AD3d 510, 922 NYS2d 293 [1st Dept 2011]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316 [1985] ). Thus, the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact (Madeline D'Anthony Enterprises, Inc. v Sokolowsky, 101 AD3d 606, 957 NYS2d 88 [1st Dept 2012] citing Alvarez v Prospect Hosp., 68 NY2d 320, 501 NE2d 572 [1986] and Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see also Powers exrel. Powers v 31 E 31 LLC, 24 NY3d 84 [2014]).
The moving party must demonstrate entitlement to judgment as a matter of law and the absence of triable issues of fact, and the failure to make such a showing will result in the denial of the motion, regardless of the sufficiency of the opposing papers (Corprew v City of New York, 106 AD3d 524, 965 NYS2d 108 [1st Dept 2013]; TrizecHahn, Inc. v Timbil Chiller Maintenance Corp., 92 AD3d 409, 937 NYS2d 586 [1st Dept 2012]; Santos v New York City Transit Authority, 99 AD3d 550, 952 NYS2d 179 [1st Dept 2012] ).
RPAPL 711 provides that "a special proceeding may be maintained [when] the premises, or any part thereof, are used or occupied for any illegal trade or manufacture, or other illegal business (emphasis added). An essential element for eviction pursuant to RPAPL 715(1) is that "the illegal use made of the premises be customary and habitual" (Solow Bldg. Co., II, L.L.C. v Banc of Am. Sec., LLC., 13 Misc 3d 55, 56—57 [App Term 1st Dept 2006] [reversing trial court and dismissing summary eviction proceeding for commercial premises where impropriety complained of was "serious pattern of misconduct on the part of a single member of the tenant's substantial on-site workforce"] ). "There must be a showing that the tenant has departed from the legitimate or legal use for which the premises were hired, by some measurable degree of continuity of acts of vice related to the occupancy of the premises or to the method of conducting the business therein" (id.).
Indeed, a logical extension of this requirement is that, as Tenant argues, "the personal use of illegal drugs within a premises, even if habitual and customary, does not constitute an illegal use of that premises for purposes of RPL § 231(1) and RPAPL § 715(1) because such conduct does not amount to a commercial activity or enterprise" (1165 Broadway Corp. v Dayana of NY Sportswear, Inc., 166 Misc 2d 939, 944 [Civ Ct NY County 1995] ).
However, personal use is distinguishable from evidence of "business," "trade," and "manufacture" (MS Hous. Assoc. v Greene, 28 Misc 3d 131(A) [App Term 1st Dept 2010] [sufficient evidence to support finding that the tenant "knew or should have known of the illegal drug-related use of her apartment" where police found a deck of heroin; a small quantity of marijuana; a coffee grinder, scale and a toothbrush, each containing heroin residue; a false bottom container containing two to four hundred glassine envelopes; drug paraphernalia used to dilute heroin; and a taser/stun gun]; see also Tsang Realty v Sepulveda and Nunez [Civ Ct NY County, Index No. L & T 109064/94] [storage and distribution of fireworks]; Cohen v Carroll, 63 Misc 2d 222, 223 [Civ Ct NY County 1970], affd, 65 Misc 2d 691 [App Term 1st Dept 1971] [sale and distribution of obscene material]; Elmore v Berti, 128 Misc 74, 217 NYS 813 [NYC Municipal Ct 1926] [sale of alcohol in violation of federal prohibition laws] ). Indeed, it is not even 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" (88-09 Realty, LLC v Hill, 305 AD2d 409, 410 [2d Dept 2003] ).
In Oquendo, (147 Misc 2d 125), which Tenant does not substantively distinguish, the respondents were arrested inside the subject premises, where the police recovered 73 tin foil packets of cocaine, plastic bags containing cocaine and heroin, and 212 glassine envelopes each containing heroin, a 32 caliber semi-automatic pistol, live ammunition, alleged drug records, a rubber stamp containing the words "Block Buster" and $4,445 in cash (id. at 131). The Oquendo Court, construing the petition liberally in the petitioner's favor, found that the allegations were sufficient to state a cause of action under RPAPL 711(5) (id.).
With the exception of the pistol, the items recovered in Oquendo are similar in nature to those found here, and sufficient to maintain a summary proceeding for "illegal trade or manufacture, or other illegal business." Viewing the facts, as the Oquendo court did, through the lens of a motion to dismiss as a matter of law — that is, viewing the facts in the light most favorable to the non-movant landlord — there is sufficient evidence in the Petition and opposition to conclude that the items discovered in the Premises could demonstrate an "illegal trade or manufacture, or other illegal business." The volume and presence of paraphernalia, in particular, support Landlord's contention that Tenant was using the Premises to facilitate drug sales (see, e.g. People v Rodriguez, 176 AD2d 522, 523 [1st Dept 1991] ["intent to sell may be inferred from the quantity of drugs, the presence of the [heat] sealer, and the presence of the prerecorded buy money in the cash on the bar"]; People v Freeman, 106 AD3d 590, 591 [1st Dept 2013] [intent to sell could be inferred from presence, on the premises where defendant was arrested, of scales, small plastic bags, razors and other drug paraphernalia indicating that defendant was packaging drugs for sale] ). Thus, at this juncture, dismissal is inappropriate.
Finally, Tenant invokes RPL 231(3) and (5), which provide that two or more convictions of any person within a period of one year for certain prostitution or gambling offenses, respectively, "shall be presumptive evidence of unlawful use of such premises and of the owners [sic] knowledge of the same." The Petition does not invoke either provision, nor is such invocation required because the Petition does not allege prostitution or gambling offenses. Rather, the Petition relies upon RPL 231(1), which provides an independent basis to void a tenancy.
Even assuming, arguendo, that a presumptive burden attached to drug offenses, and that Landlord sought to argue such a presumption, that would be a determination for trial, at which time Landlord would have 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" (855-79 LLC v Salas, 40 AD3d 553, 554 [1st Dept 2007] ). Here, however, the sole determination before the Court is Tenant's motion for summary judgment. On that motion, Tenant must first demonstrate the lack of any triable issue of fact and, upon that showing, Landlord would be required to show the opposite. Based on the above, Tenant fails to meet his burden because the items discovered in the Premises could, at trial, support a finding of an "illegal trade, manufacture or other business."
CONCLUSION
Based on the foregoing, it is hereby
ORDERED that Respondent's motion is denied in its entirety; and it is further
ORDERED that Petitioner shall, within 10 days of receipt of this order, serve a copy of this order with notice of entry upon all parties; and it is further
ORDERED that the parties shall appear for trial in Part 52 on June 13, 2017 at 9:30 A.M.; and it is further
ORDERED that no adjournments of said trial date shall be granted without approval of the Court for good cause shown. This constitutes the decision and Order of the Court. _May 24, 2017. Dakota D. Ramseur, J.C.C.