Although statistics show that crime continues to decline dramatically both nationally and locally, drug dealers continue to be a problem for many property owners throughout the City.
Owners need to be aware that there are programs and law enforcement resources available to help them remove drug dealers from their buildings.
The Trepass Affidavit Program
The Trespass Affidavit Program (TAP) is a City-wide collaborative effort between the Police Department and the District Attorneys’ offices to target drug dealers in the public areas of residential buildings.
TAP began in 1991, in response to complaints by both owners and tenants of drug dealing in their buildings. In these cases, both the owners and law-abiding tenants are victimized and have a common interest in eliminating the drug activity. Often times, the drug activity also results in vandalism and other damage to the building, and the tenants, who become intimidated and suffer from the deteriorated conditions caused by the dealers and their customers, often stop paying their rent.
The TAP program is run by the District Attorneys in conjunction with the local police precincts. When the local precinct receives complaints about drug trafficking activity in a particular building, it contacts the owner or agent of the building. To participate in TAP the owner or agent must sign an affidavit, authorizing the police to perform “vertical” patrols in their building. The owner or agent must provide the police with an up-to-date list of tenants and keys to the common areas in the building. In addition, the owner or agent is required to prominently post signs throughout the building which read, “TENANTS AND THEIR GUESTS ONLY.”
The list of tenants and other occupants living in each building must be updated monthly. In addition, the affidavits must be renewed before their scheduled expiration period if the precinct wants to continue its patrols in that building. Owners who are interested in participating in TAP should contact their local precinct for more information.
The Narcotics Eviction Program
The Narcotics Eviction Program (NEP) is administered by the District Attorneys offices and targets drug dealers who conduct their activities in apartments. Real Property Actions and Proceedings Law (RPAPL),§715, also known as the “Bawdy House Law,” authorizes District Attorneys to order private owners to commence eviction proceedings against any tenant who is engaging in illegal business activity, including weapons, prostitution, gambling and drug dealing. If the owner does not start the proceeding, the District Attorney may commence the eviction proceeding instead.
The standard of proof that an owner must satisfy is high in a drug holdover brought pursuant to this section of the law. To succeed, the owner must prove not only that the tenant used or permitted the apartment to be used for illegal activity, but also that the tenant knew or should have known of the activity.
The Legal Complications
There have been several recent cases involving RPAPL, §715. In Perdomo v. Morganthau, NYLJ 12/05/07 (Sup Ct. N.Y. Co.), the owner sought to evict a tenant as a result of the arrest of her son in the apartment. The owner commenced the holdover but, subsequently, offered to settle the proceeding and allow the tenant and her family, who had occupied the apartment for many years, to remain if the tenant agreed to permanently exclude her son from the apartment. The Manhattan District Attorney then sought a declaratory judgment that it had the right to approve or veto any settlement in the housing court proceeding, arguing that absent its approval of settlements, an owner could collude with a tenant and thwart the public policy behind the statute by bringing and then settling an eviction proceeding by allowing the offending tenant to remain. State Supreme Court Justice Emily Jane Goodman held that the District Attorney does not have authority to require its approval of a settlement.
In TPE 710 RSD v. McKinney (NYLJ, 1/9/08), the owner sought the tenant’s eviction on the ground that she permitted her boyfriend to sell drugs out of the subject apartment. The boyfriend was arrested when he ran into the apartment during a police chase. He allegedly dropped a revolver in the hallway outside the apartment and other weapons and drug paraphernalia were later found in the apartment. Housing Court Judge Marc Finklestein held that this evidence did not prove that there was an illegal business (drug dealing) being conducted in the apartment and that the “acquiescence of the tenant” could not be inferred from the acts of the tenant’s boyfriend.
In at least one unreported Bronx County housing court case involving RPAPL, §715, the owner was forced to settle the eviction proceeding after a conviction was reversed on appeal, and the owner was ordered by the court to pay the tenant’s legal fees. However, in White v. Pinedam, 12 Misc. 3rd 45 (AT 2d Dept 2006), the Appellate Term affirmed Queens County Housing Court Judge Margaret McGowan’s dismissal of the tenant’s counterclaim for attorneys fees in a drug holdover proceeding. In that case, the District Attorney moved to dismiss the petition, admitting that the tenant had not been involved in any illegal activity. The Appellate Term held that requiring the owner to pay the tenant’s attorney’s fees would be unfair when the underlying proceeding was commenced at the direction of the District Attorney and that it was the District Attorney’s fault that the owner did not prevail.
Owners who have reason to believe that there is drug dealing or other illegal activities occurring in their buildings should contact their local precinct to take advantage of the programs and resources available to them. Ultimately, the success of these programs in a particular case is dependent upon the whether the police and the District Attorney’s office are able to prove the criminal case.
|
