Publications

Drug-Related Eviction Cases

© 1989

by Jay B. Itkowitz

I. Introduction

The "crack epidemic" has spawned a spate of crime and associated violence that has dramatically impacted on the quality of residential housing throughout the country, particularly in urban centers like the City of New York.

A. Public Policy Considerations:

Drug abuse in a community threatens the very fabric of society by undermining social morals and values, and affecting its citizens and eroding its neighborhoods. Drug abuse very often reaches vulnerable children because they are easy 'targets.' The use of real property for illegal purposes such as the sale and use of illegal drugs if unchecked will flourish and irreparably affect the entire neighborhood by disrupting its tranquility and increasing the crime rate in the area. If this condition is allowed to continue, residents will abandon the neighborhood and the criminal elements will take over. This will lead to the degeneration of the neighborhood. Kellner v. Cappellini, 135 Misc.2d 759, 516 N.Y.S.2d 827 (Civ. Ct. N.Y. Co. 1986) (per Tom, J.).

"The presence of drug pushers in residential buildings is intolerable." Justice Milton Williams, Administrative Judge for the Courts of the City of New York." Chan v. Rivera, NYLJ, 5/17/89, p. 26, col. 4 (Kings Co. Civ. Ct., Trial Term Pt. 13) (per Harkavy, J.).

B. In response to the explosion of drug use, and the accompanying adverse impact on residential neighborhoods, the Administrative Judge of the City of New York has established special Narcotics Eviction Drug Parts in several counties to expedite the processing of drug eviction cases, effective August 1, 1988. Manhattan Lawyer, 8/2/88, p.3.

1. Accordingly, in New York, The Bronx and Brooklyn, special drug eviction parts adjudicate drug eviction cases brought by the City, the Housing Authority, the District Attorney and, when authorized, by private landlords.

a. The only way a private landlord may proceed in the special narcotics eviction part is if the landlord is advised to commence such proceedings by the District Attorney's office in New York, The Bronx and/or Kings County. Before such an authorization will issue, the appropriate District Attorney office will satisfy itself that a drug problem truly exists at the premises and that the landlord is not seeking undue advantage against a tenant.

b. A landlord may also receive such notification if such law enforcement authority on its own determines there is a narcotics problem at the subject location.

c. Alternatively, a landlord may alert the authorities to the existence of a drug problem at his premises or in one of his apartments, stimulate an arrest(s), and obtain the appropriate letter authorizing the landlord to proceed with an eviction in the special narcotics eviction part.

d. The primary advantages of proceeding in the special narcotics eviction part are:

(1) Speed. The narcotics eviction parts are not nearly as congested as the normal Housing Court parts and trials may be had on a day-to-day basis.

(2) Expertise. The judges in the narcotics evictions part are knowledgeable as to the applicable law and sensitive to the public policy imperatives of the drug crisis and its effects on residential dwellings.

2. Unlike New York, The Bronx and Kings, private landlords in Queens County may not proceed in the special narcotics eviction part. However, I am advised there is no need for a special part in Queens for expeditious treatment of drug-related evictions because Queens does not have the backlog that exists in the previously mentioned counties. Nevertheless, to get expeditious treatment of a drug eviction in Queens, one should clearly mark the cover papers in a distinctive way, such as red underline, indicating that the matter involves a drug eviction. The matter will then obtain expedited treatment. If the system does not expeditiously process the matter, complaints should be directed to Judge Richard B. Rutledge.

II. Obtaining Authorization to Proceed in the Narcotics Eviction Part

A. Frequently, a landlord will become aware of a drug problem before the authorities. Tenants and/or a super will advise the landlord. A super may find evidence of drug use such as noting the existence of crack 'vials' and/or heavy traffic to a particular apartment.

B. Upon learning of a drug problem, the landlord will next have to obtain the cooperation of law enforcement authorities. This will mean contacting the appropriate division in the Police Department. The New York City Police Department has a Narcotics Squad covering each county. Within each county, each Narcotics Squad covers a defined set of Precincts. To learn which Narcotics Squad covers your Precinct, you should call your local Precinct.

C. Upon learning which Narcotics Squad covers the subject building, one should make direct contact with the Sergeant in charge of the location. One should advise of the problem, request an investigation and confirm in writing by certified mail, return receipt requested. Copies of such correspondence should be forwarded to the local precinct, and the head of the Narcotics Squad. One may also wish to coordinate with the District Attorney's office. The Police Department is usually more responsive to the District Attorney's office than to individuals calling to provide information.

D. Upon learning of a drug arrest(s) at an apartment, or in relation to a tenant at the premises, one should request a letter from the District Attorney authorizing the landlord to proceed with an eviction in the special narcotics eviction part. Once satisfied that a significant problem is present, upon such an arrest, the appropriate District Attorney's Office will issue such a letter.

E. Simultaneously with the filing of the Order to Show Cause etc., one should submit appropriate subpoenas to the Court for signature. Such subpoenas will necessarily be directed to governmental agencies and must necessarily be "So Ordered."

III. Statutory Basis

A. Real Property Actions and Proceedings Law ("RPAPL") Section 711(l) authorizes the removal of an "objectionable tenant" and RPAPL Section 711(5) authorizes the eviction of a tenant where "[t]he premises, or any part thereof, are used or occupied ... for any illegal trade or manufacture, or other illegal business."

B. RPAPL Section 715(l) authorizes an eviction proceeding by an owner or tenant of an apartment house or multiple dwelling within two hundred feet of any premises used or occupied in whole or part "for any illegal trade, business or manufacture...."

C. Rent Stabilization Code ("RSC") Section 2524.3(b) provides that a tenant may be evicted where the tenant is committing or permitting a nuisance in the subject building.

D. RSC Section 2524.3(d) provides that a tenant may be evicted where the tenant is "using or permitting such housing accommodation to be used for an immoral or illegal purpose."

IV. Notice Requirements, If Any

A. The RPAPL does not require a landlord to serve a notice prior to instituting a proceeding to evict a tenant for such illegal trade etc. Chan v. Rivera supra; City of New York v. Juanita Rodriguez, 531 N.Y.S.2d 192 (Bx. Cty. Civ. Ct. Pt. 18-A 1988) (per Targum, J.).

B. However, it has been held that when proceeding against an apartment governed by the RSC, Section 2524.2(c)(2) requires that the landlord serve a seven-day notice prior to the date specified for surrender or possession as a predicate for a holdover proceeding. 2312-2316 Realty Corp. v. Font, NYLJ, 8/5/88, p. 19, col. 2 (Bx. Cty. Ct. Pt. 18F) (per Wendt, J.). Accordingly, in light of the cited decision, the more conservative practice would be to serve a seven-day notice prior to proceeding against a Rent Stabilized tenancy.

V. Who May Bring the Proceeding?

A. RPAPL Section 715 authorizes an owner of real property or a tenant of a demised premises within 200 feet of real property used in whole or part as a "bawdy house" or other illegal activities to commence an eviction proceeding. Kellner v. Capellini, 135 Misc.2d 759, 516 N.Y.S.2d 827.

B. RPAPL Section 715 operates, in effect, as a "derivative action" for tenants or neighbors where the owner, after notice, fails or refuses to act against occupants utilizing premises for illegal trade and/or business. Zinberg v. Frazier, NYLJ, l/22/88, p. 7, col. 3 (Civ. Ct. N.Y. Co. Trial Term Pt. 53) (per Andrews, J.).

VI. Activities Authorizing an Eviction

A. Selling drugs in front of a building by an occupant of an apartment involved in a "common law" relationship with the tenant of record was sufficient to uphold an eviction against all the occupants of the apartment. City of New York v. Juanita Rodriguez, 531 N.Y.S.2d at 192.

B. Permitting others to use an apartment for such illegal activities will support an eviction even where the tenant of record is not accused of selling drugs. Chan v. Rivera, supra; City of New York v. Prophete, NYLJ, 5/19/89, p. 22, col. 5 (N.Y. Co. Civ. Ct. Pt. 18) (per Tom, J.). Passive acquiescence may be sufficient. Lloyd Realty Associates v. Nieves, NYLJ, 7/10/89, p.31, col. 3 (N.Y. Co. Civ. Ct. Pt. 18) (per Schlesinger, J.).

C. The petitioner must prove there is a nexus between the illegal activity and the subject apartment. Thus, where a son was arrested for narcotics offenses, the parents could not be evicted from a Housing Authority project where the only evidence presented was that the son was a drug addict. In such circumstances it was incumbent on the petitioner to adduce facts that the son was a source of danger to other tenants or the community. Matter of Sanders v. Cruise, 10 Misc.2d 533 (Sup. Ct. Sp. Term N.Y. Co. 1958).

VII. Evidence

A. It is not necessary to prove specific illegal acts, only that the acts and conduct warrant an inference of illegal acts. New York County District Attorney's Office v. Rodriguez, NYLJ, 12/9/88, p. 21, col. 3 (N.Y. Co. Trial Term, Pt. 56) (per Tom, J.).

B. Certified copies of arrest records, affidavits of arresting officers and certificates of dispositions of criminal proceedings may be introduced as evidence of illegal acts. E.g., City of New York v. Rodriguez, 531 N.Y.S.2d 192.

C. Police Laboratory reports may be introduced to document that contraband seized in an apartment constitutes an illegal drug. Chan v. Rivera, supra; New York County District Attorney's Office v. Rodriguez, supra.

D. A video-taped interview in which the tenant admitted knowledge of drug activities by occupants of the apartment is sufficient to support an eviction. City of New York v. Prophete, supra.

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