Respondent Lisa Patterson moves to dismiss the summary proceedings on the grounds "that the Petitioner has waived its right to commence the instant proceeding and cannot meet its burden of proof even if all facts contained in the petition and termination were deemed to be true and accurate."
Petitioner caused to be served upon Respondent a Thirty-Day Notice of Termination of Tenancy concerning Apt. 4A located at 4A Martin Luther King Drive, Hempstead (hereinafter referred to as the Notice). The Notice is dated September 21, 2015 and is executed by Pen Wisneski, Registered Managing Agent. The Notice terminates the Lease as of October 31, 2015. The Notice cites Paragraph 23(c) of the Lease executed November 14, 2014, the One-Strike Policy - Criminal Activity Addendum, and Crime Free Lease Addendum as grounds for the eviction.
Paragraph 23(c) of the Lease, as set forth in the Notice, states:
"The Landlord may terminate this agreement for the following reasons: ...
(3) drug related criminal activity engaged in on or near the premises by any tenant, household member, or guest, and any such activity engaged in on the premises by any other person under the tenant's control. ...
(6) criminal activity by a tenant, any member of the tenant's household, a guest or another person under the tenant's control:
(a) that threatens the health, safety, or right to peaceful enjoyment of the premises by other residents (including property management staff residing on the premises); or
(b) that threatens the health, safety, or right to peaceful enjoyment of their residences by persons residing in the immediate vicinity of the premises. ...
(8) if the tenant is violating a condition of probation or parole under Federal or State law; ...
(10) if the Landlord determined that the tenant, any member of the tenant's household, a guest or another person under the tenant's control has engaged in criminal activity, regardless of whether the tenant, any member of the tenant's household, a guest or another person under the tenant's control has been arrested or convicted for such criminal activity."
The One-Strike Policy Addendum, as set forth in the Notice, provides:
" A. Resident Conduct:
1. Any criminal activity is grounds for eviction if it threatens the health, safety or right to eaceful enjoyment of the premises by other Residents.
2. All drug related criminal activity, whether on or off the premises, is cause for eviction.
3. A Residency may be terminated and the household evicted when the Resident, [any] member of the Resident's household, or a guest engages in criminal activity described above. ...
B. Evictions:
1. Drug related or criminal activity, in violation of this lease provision, will be treated as a serious violation of the material terms of this lease. The Housing Company will seek eviction, under appropriate laws and statutes of any Resident determined to be in violation of the material terms of this lease. ...
3. Resident, upon entering in the lease agreement, promise to abide by its terms. Resident[s] have an affirmative obligation to assure that neither they nor any member of their household, or guest, or anyone else under their control, by virtue of having been [invited] to the premises, will engage in prohibited drug related or other criminal activities. The Housing Company may evict the entire household when a household member or guest commits a crime in violation of the lease provisions. The resident is responsible for the household."
The Crime Free Lease Addendum, as set forth in the Notice, states:
"Resident, any members of the resident's household or a guest or other persons affiliated with the resident:
1. Shall not engage in criminal activity, including drug-related criminal activity, on or near the said premises. 'Drug related criminal activity' means the illegal manufacture, sale, distribution, use, or possession with intent to manufacture, sell, distribute, or use an illegal controlled substance.
2. Shall not engage in any act intended to facilitate criminal activity. ...
4. Shall not engage in the unlawful manufacturing, selling, using, storing, keeping, or giving of an illegal or controlled substance, at any locations, whether on or near the dwelling unit premises. 6. VIOLATION OF THE ABOVE PROVISIONS SHALL BE A MATERIAL AND IRREPERABLE VIOLATION OF THE LEASE AND GOOD CAUSE FOR IMMEDIATE TERMINATION OF TENANCY."
The grounds for terminating the Lease set forth in the Notice are:
"PLEASE TAKE NOTICE that on July 10, 2012, Curel Patterson was arrested on charges of gang assault in the first degree, and assault in the third degree, for the assault of Rhonda Smith, a tenant of Park Lake Residences. Additionally, on February 5, 2005, Curel Patterson was arrested for the stabbing of Rasheed Dillard, then a tenant of Park Lake Residences, resulting in charges of assault in the first degree. On that same occasion, you were also arrested for the assault of Taylor Shea, by 'intentionally caus[ing] injury to the victim with the discharge of a firearm.' On February 5, 2005, you were also arrested for several other charges. All these incidents constitute criminal activity in breach of the Lease, the Addendum, and the One-Strike Policy."
In support of the Motion to Dismiss, the Affidavit of Lisa Patterson, sworn to March 9, 2016, is submitted. Respondent states she has lived at the premises for over 30 years. Her son, Curel Patterson, was a co-tenant until his incarceration in 2012. Respondent states that she recertified in October of 2012, 2013, 2014, and 2015. Respondent claims that she cannot be evicted for events that occurred almost four years ago, and about 12 years ago, as Petitioner has waived its right to evict by these delays.
In opposition to the Motion to Dismiss, Petitioner submits the Affidavit of Judy Thomas (hereinafter referred to as Thomas), sworn to May 13, 2016. Thomas states that she is Property Manager and has held this position for over 10 years. She makes the following arguments (lettering does not match numbers in Affidavit):
(a) Curel was a member of Respondent's household at the time of his arrest in July of 2012 and he signed the Crime Free Lease Addendum prior to his arrest.
(b) Respondent's Lease was recertified subsequent to the arrest and incident because:
"5. Management processed the Respondent's annual recertifications subsequent to the arrest and incident in question simply because the recertifications and renewals are required by law as a condition of the tenant's occupancy at the Premises, a Project Based Section 8, building and as a requirement of her subsidy by HUD.
6. CUREL was not removed from the subsequent recertifications simply because both the tenant and the landlord were uncertain as to whether CUREL would ultimately return to the premises and further, because both parties were awaiting the ultimate disposition of the criminal case that resulted from the incidents in question in 2012.
7. Furthermore, Ms. PATTERSON, never attempted to remove CUREL from the household composition. As to the recertifications that happened prior to 2012, petitioner was simply unaware of the respondent's extensive criminal activity dating back to 2005, upon learning of his extensive criminal record after the arrest in 2012, it became apparent that Ms. PATTERSON could not control her son and the decision was made to start the instant case.
8. Rather than lose her subsidy, the recertifications were process the recertification [sic] with CUREL on the composition. Again, the recertifications and renewals were only done because they are required by law as a requirement of the tenant's occupancy and subsidy for the Subject Premises. Petitioner never knowingly acquiesced to the violations or intentionally 'waived' their right to terminate the tenancy due to the serious crimes that CUREL committed."
Thomas states that Respondent hasn't paid rent since October 14, 2015. No rent was accepted from Respondent after October 31, 2015 - the date set forth in the Notice, and Respondent owes $3,557.00. The Court notes that Respondent doesn't deny receiving the governmental subsidy each month and depositing same.
Zachary Hall, Esq., submits his Affirmation, dated May 13, 2016, in opposition to Respondent's Motion. Attorney Hall states that the Premises is a housing project regulated by HUD Section 8 Housing Program, subject to "HUD's regulations, requirements and administrative guidelines."
Counsel for Petitioner states that Respondent is being evicted because of the illegal activity set forth in the Notice which constitutes a breach of the Lease. Counsel makes reference to the Hempstead Police Department records concerning the arrest of Curel Patterson to bolster his case. The following describes the arrests of Curel Patterson:
(a) July 10, 2012 - Gang assault with intent to cause physical injuries, when Curel Patterson, in concert with two other defendants, allegedly assaulted Rhonda Smith, who also resides at Park Lake.
(b) September 6, 2005 - Possession and sale of crack cocaine.
(c) February 28, 2005 - Curel Patterson was arrested for assault in the first degree and criminal possession of a knife after Curel Patterson, with another defendant, stabbed and seriously injured Rasheed Dillard, who was a tenant at Park Lake. This incident occurred in September of 2004.
(d) February 28, 2005 - Arrested and...
