W. Haverstraw Pres., LP v. Diaz

• Decision Date: 18 January 2018
• Docket Number: 2016–343 RO C
• Citation: 58 Misc.3d 150 (A),94 N.Y.S.3d 541 (Table)
• Parties: WEST HAVERSTRAW PRESERVATION, LP, Respondent, v. Ronnie DIAZ, Appellant.
• Court: New York Supreme Court — Appellate Term

58 Misc.3d 150 (A)

94 N.Y.S.3d 541 (Table)

WEST HAVERSTRAW PRESERVATION, LP, Respondent,

v.Ronnie DIAZ, Appellant.

2016–343 RO C

Supreme Court, Appellate Term, New York, Second Department, 9th and 10th Judicial Districts.

Decided on January 18, 2018

Legal Aid Society of Rockland County, Inc. (Aimee M. Pollak, Esq.), for appellant.

Law Office of Heath Gurinsky, PLLC (Heath Gurinsky, Esq.), for respondent.

PRESENT: ANTHONY MARANO, P.J., JAMES V. BRANDS, TERRY JANE RUDERMAN, JJ

ORDERED that the final judgment is affirmed, without costs.

Tenant's residential lease with landlord, West Haverstraw Preservation, LP, a federally subsidized low-income housing project subject to the rules and regulations promulgated by the United States Department of Housing and Urban Development (Section 8), contained the federally mandated proscription against "drug-related criminal activity" on or near the premises (see 42 USC § 1437d [l] [6]; 24 CFR § 5.100 ), and provided that landlord may terminate the lease upon tenant's "material noncompliance" with the lease terms which, among other things, required that tenant shall "not ... use the unit for unlawful purposes" or "engage in or permit unlawful activities in the unit, in the common areas or on the project grounds." After tenant was arrested in the premises for selling drugs, landlord served a termination notice based, in part, on tenant's having violated the lease provision barring drug-related activity in the premises, and commenced this holdover proceeding.

At a nonjury trial, landlord's witness testified to numerous complaints having been communicated to landlord, by other residents of the project, that vehicles and persons had been arriving at tenant's premises at all times of day and departing after brief periods. The police were notified, and, according to police documents admitted into evidence, an investigation led to the execution of a search warrant at tenant's premises, which was preceded by a controlled buy of heroin at the premises by a confidential informant. The warrant's execution resulted in the discovery of several types of controlled substances, including heroin and marihuana, as confirmed by field tests, several weapons, including a firearm, United States currency, and 17 empty "wax envelopes" which, the report stated, were identified as of a type commonly used "in the packaging and distributing [of] narcotics such as heroin." After the trial, the Justice Court concluded that tenant had violated the lease and awarded landlord a final judgment of possession. We affirm.

On appeal, tenant first contends that landlord failed to prove proper service of the notice of termination. However, where, as here, a tenant appears generally and fails to raise a challenge to the sufficiency of service of a predicate notice in the answer (see Forest Hills S. Owners, Inc. v. Ishida , 33 Misc 3d 141[A], 2011 NY Slip Op 52202[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011] ) or in a pretrial motion to dismiss (see Paris Lic Realty, LLC v. Vertex, LLC , 41 Misc 3d 145[A], 2013 NY Slip Op 52074[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013] ), the objection is waived (see Citi Land Servs., LLC v. McDowell , 30 Misc 3d 145[A], 2011 NY Slip Op 50387[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; Bham v. Wilson , 10 Misc 3d 72, 73 [App Term, 2d Dept, 9th & 10th Jud Dists 2005]; 3 Robert F. Dolan, Rasch's Landlord and Tenant—Summary Proceedings § 41:30, at 42 [5th ed 2017]; see also 136–76 39th Ave., LLC v. Ai Ping Wu , 55 Misc 3d 128[A], 2017 NY Slip Op 50363[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017] ).

We also find that the notice alleged "the reasons for the landlord's action with enough specificity so as to enable the tenant to prepare a defense" ( 24 CFR § 247.4 [a] ). The notice states, among other things, that "[o]n April 25, 2015 at 12:25 AM [tenant was] arrested on the site for selling drugs" and that tenant was "using and distributing narcotics." The notice also referred to the lease clauses providing that "drug related criminal activity" and "using a drug" on the premises are grounds for terminating a lease. Thus, by the notice, tenant was alerted to the specific lease provisions which he had allegedly violated by his having engaged in drug-related criminal activity in his unit at a specific time and place (see e.g. Park Lake Residences, LP v. Patterson , 53 Misc 3d 719, 728 [Nassau Dist Ct 2016] [termination notice sufficient pursuant to 24 CFR § 247.4 (a) where the tenant "was informed of the specific date and crime which her son allegedly committed"] ).

The trial evidence sufficed to establish a material violation of the lease. It was landlord's burden to establish, by a preponderance of the evidence, that tenant had engaged in drug-related criminal activity, defined as "the illegal manufacture, sale, distribution, or use of a drug, or possession of a drug with intent to manufacture, sell, distribute or use the drug" ( 24 CFR § 5.100 ; see Los Tres Unidos Assoc., LP v. Mercado , 44 Misc 3d 5, 6 [App Term, 1st Dept 2014] ; see also 42 USC § 1437d [l] [6]; Greenburgh Hous. Auth. v. Hall , 55 Misc 3d 146[A], 2017 NY Slip Op 50680[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2017] ). Landlord's witness testified that she had received complaints from other residents that "numerous vehicles [had been] coming onto the property for very brief periods of time ... in the area of [tenant's] apartment, and cars and people in and out of the apartment at random hours, constantly." There was no objection to this testimony, and, in any event, the evidence was admissible as background information to explain landlord's subsequent conduct with respect to the investigation of tenant's criminal activity (e.g. People v. Ridenhour , 153 AD3d 942, 942 [2017] ; People v. Reynolds , 46 AD3d 845, 845 [2007] ; People v. Tucker , 54 AD3d 1065, 1066 [2008] ; People v. Azizian , 46 Misc 3d 145[A], 2015 NY Slip Op 50211[U], *4 [App Term, 2d Dept, 9th & 10th Jud Dists 2015] ). Landlord's proof included a certified copy of a police report which contained factual allegations, based on personal knowledge by members of the police team that had executed the search warrant, that the search produced various weapons, including a firearm, and multiple controlled substances, including heroin, the identification of which was supported by field tests, and evidence of trafficking in controlled substances, namely a quantity of United States currency and 17 units of packaging material which an officer described, on the basis of his training and experience, as commonly used in the packaging of narcotics "such as heroin." Although at trial, when the police report was initially offered into evidence, defendant stated that he "object[s]...