DECISION / ORDER PROCEDURAL HISTORY AND BACKGROUND 258 East 4th Street L.P. (“petitioner”) commenced the within holdover proceeding against the rent-stabilized tenant of record, Kristopher Gibbs (“respondent”), Matthew Roman, Nico Meneses, Devin Detres, and Rosalinda Gibbs, as well as other occupants identified as “John and Jane Doe” at 258 East 4th Street, Apartment 3H, New York, N.Y. 10009 (“premises”). Petitioner sought to recover possession of the premises pursuant to Real Property Actions Proceedings Law (“RPAPL”) Section 711(5) and Real Property Law (“RPL”) Section 231(1) on the grounds that the respondent permitted the premises to be utilized as a conduit for the sale of illegal drugs and for other illegal purposes. Respondent appeared by counsel and denied the allegations in the petition. He alleged he was unaware of any guns located in the premises and was only aware of drugs for personal use found in his bedroom. Prior to trial, all other named occupants of the premises surrendered possession. TESTIMONY Petitioner called Sade Abraham, the property manager of the subject building, as its witness Ms. Abraham testified that the subject building consists of apartments for individuals with psychiatric disabilities and for low-income, non-disabled families. The premises is designated as occupied by individuals who are non-disabled. Petitioner’s next witness was New York City Police Officer Daniel Dongvort. He testified that, on August 26, 2016, he executed a search warrant at the premises. He was familiar with one of the occupants, Nico Meneses, who according to Officer Dongvort, “turned a gun on [him] and attempted to kill [him],” during an altercation several days earlier at a separate location. He described the premises as a two-bedroom apartment with a living room converted to a third bedroom. At the time the search warrant was executed, the respondent, his girlfriend (Devin Detres), and Nico Meneses were in the premises. Respondent and Ms. Detres were in one bedroom and Mr. Maneses was in the living room. There were two locked safes in each of these rooms. The police also found scales; hundreds of packaging materials consisting of plastic and glass capsules, vials, and baggies; multiple phones and cellphones; and third-party identification cards in the living room. The police found a pouch with cocaine and a large clear bin with drug paraphernalia in respondent’s bedroom. Pursuant to a second search warrant, the safes were unlocked and searched. Two functioning handguns with magazines and hollow-point ammunition and illegal drugs were found in the living room safes. A handgun, jewelry, personal identification, a butterfly knife and illegal drugs including, but not limited to: 81 Alprazolam pills; 32 oxycodone pills; 20 hydrocodone pills; 7 bags of crack/cocaine; 10 amphetamine pills; and various bags of marijuana were found in respondent’s safes. As a result of the execution of the search warrant, respondent was arrested and indicted on multiple felony drug and weapons charges. Respondent plead guilty to a class B felony criminal possession of a controlled substance, (i.e. cocaine of an aggregate weight of one half ounce or more) and to a class D Felony attempted criminal possession of a weapon (a 9mm Smith and Wesson handgun). The first witness to testify on respondent’s behalf was respondent’s mother, Rosalinda Gibbs. Ms. Gibbs testified that she was the prior tenant of record who moved into the premises with respondent in October 1993. She moved out of the premises in 2014 and respondent was recognized as her successor tenant of record. Thereafter, the respondent lived in the master bedroom and his childhood friend, Matthew Roman, lived in the other bedroom. Ms. Gibbs testified that respondent allowed a college friend, Nico Maneses, to stay in the premises in March 2015 because Mr. Maneses had “no place to go.” She did not know Mr. Meneses. Upon learning of the NYPD search of the premises and her son’s arrest, she as mortified and devastated. Currently, Prince Israel, her younger son resides with respondent. Respondent’s neighbor, Leticia Rodriguez, also testified on respondent’s behalf. Ms. Rodriguez described respondent as a “good kid” who poses no threat to others. Respondent testified that he has been the tenant of record of the premises since 2014. He testified that he knew Nico Meneses from college and allowed him to stay in the premises. He stated that Mr. Maneses was a good person but sometimes became unruly when he had too much to drink. During the time Meneses lived with him, he never saw narcotics or weapons and had no knowledge of illegal activity in the premises. He knew Nico Meneses had two safes in the living room but denied knowing the contents of the safes or asking Mr. Meneses what was inside. Respondent admitted that he had a prior criminal record. In October 25, 2012, respondent was convicted of Criminal Trespass in the Second Degree. On August 2, 2015, he was arrested and later found guilty after trial of attempted criminal possession of a controlled substance. As a result, he was imprisoned for 90 days. Respondent alleged he was traumatized by the manner in which the search warrant was executed on August 26, 2016. He admitted there were two safes in his bedroom. One contained jewelry and other expensive items and one had a butterfly knife which was given to him by his martial arts teacher. He admitted he had used drugs for personal use in his room but denied that a handgun and extensive amounts of narcotics were in his safe. He inferred that these were placed there by the police. He was arrested following execution of the search warrant and was held at Riker’s Island as he could not make bail. After eighteen months, he plead guilty to “B Felony Criminal Possession of a Controlled Substance” and “D Felony Attempted Criminal Possession of a Weapon.” He professed his innocence stating that he only plead guilty as he knew that with “time served,” his sentence would be over in a few months. ANALYSIS Petitioner commenced this proceeding under RPAPL Section 711(5) and RPL Section 231(1). RPL Section 231(1) voids the lease “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 or manufacture, or other illegal business.” RPAPL Section 711(5) allows commencement of a proceeding against a tenant whose “premises, or any part thereof, are used or occupied as a bawdy-house, or house or place of assignation for lewd persons, or for purposes of prostitution, or for any illegal trade or manufacture, or other illegal business. Pursuant to these provisions, the landlord must “prove by a preponderance of the credible evidence that the subject premises were to be used to facilitate trade in drugs and that the tenant knew or should have known of the activities and acquiesced in the illegal activity in the apartment.” See 855-79 LLC v. Salas, 40 AD3d 553 [1st Dept 2007]; see also, 1895 Grand Concourse Assoc. v. Ramos, 179 Misc2d 508 [Civ Ct, Bronx County 1998], citing, Lloyd Realty Corp. v. Albino, 146 Misc2d 841 [Civ Ct, NY County 1990]; Matter of 88-09 Realty v. Hill, 305 AD2d 409 [2d Dept 2003]. “A tenant will be liable for the illegal acts committed in the leased property by a subtenant or occupant and is subject to forfeiture of the leasehold if the tenant had knowledge of and acquiesced to the use of the demised premises for such an illegal activity.” 1895 Grand Concourse v. Ramos, 179 Misc2d 508 [Civ Ct, Bronx County 1998]. “It is not necessary that the tenant actually participated in the illegal activity; it is sufficient that the acts and conduct complained of warrant the inference of acquiescence. See 88-09 Realty, LLC v. Hill, 305 AD2d 409 [2d Dept 2003](citing City of New York v. Goldman, 78 Misc2d 693). In this proceeding, a search of the premises was based upon the prior arrest of respondent’s roommate. “A search warrant that has been approved by a reviewing magistrate is cloaked with a presumption of validity.” People v. Rogers, 94 AD3d 1246 [3d Dept 2012]. “[T]o establish probable cause for the issuance of a search warrant, the warrant application must demonstrate that there is ‘sufficient information to support a reasonable belief that evidence of a crime may be found in a certain place.’” People v. Pinckney, 90 AD3d 1313 [3d Dept 2011],quoting, People v. Church, 31 AD3d 892 [3d Dept 2006]. Despite the assertion of respondent’s counsel, the court, in a civil proceeding, can not question the validity of a search warrant unchallenged in a criminal proceeding. See Agostinelli v. City of New York, 40 Misc3d 1214(A)[Sup. Ct, Bx County 2015]. In this instance, respondent withdrew any challenge to the search warrant which formed a basis for a seizure of drugs, firearms and ammunition from the premises when he plead guilty to various charges on January 16, 2018. In Farhadian v. Diaz, NYLJ, Feb 26, 1990 at 23, col 4 [App Term, 1st Dept], the court found that from the uncontroverted evidence of large amount of drug paraphernalia, cash, and several firearms, bags containing more drugs and drug paraphernalia, and the arresting officer’s depiction of the premises as a “packaging location” and “drug factory,” the tenant must have known. “There comes a time when one must look, and when one looks, he must see. Convenient indifference should not be confused with pardonable ignorance.” City of New York v. Goldman, 78 Misc2d 693 [Civ Ct, NY County 1974]. As the tenant of record of the premises, respondent has the responsibility to exert authority over the premises which he leases and where he resides. The court finds that based on the testimony of respondent, along with the location in the apartment handguns, ammunition, and massive amounts of paraphernalia and drugs, the respondent should have been aware that the premises were used as a foundation for illegal activity. Respondent was not unsophisticated or naive. He grew up in New York City, attended college, used illegal drugs on a casual basis and was arrested and convicted of a drug-related crime in 2015. Following the arrest that formed a basis for this proceeding, he plead guilty to various charges and was fully allocuted. While the grim realities of our bail system are well-documented, the court must accept said plea on its face as an admission on the part of the respondent. The court must also weigh respondent’s interest in the premises against those of other tenants in the building. “Justice requires that the other tenants in the building and the people living in the surrounding area not be subjected to having in their midst a premises that is used for the preparation and sale of narcotics.” See Matter of Walker v. Franco, 275 AD2d 627 [1st Dept 2000]; see also, Hudsonview Co. v. Jenkins, 169 Misc2d 389 [Civ Ct, NY County 1996]. As the court noted in ARJS Rlty Corp. v. Perez, 2003 WL 22015784 [Civ Ct, NY County 2003], “given that innocent residents of rent-stabilized buildings have little option but to stay despite threats to health, welfare and safety, this court finds that evicting a tenant in an apartment where illegal activity was occurring does not shock judicial conscience.” This equation weighs heavily against respondent given that almost half of the apartments are occupied by severely disabled individuals who may not be fully able to report any drug activity. Despite the efforts of respondent’s attorney who raised serious challenges to petitioner’s prima facie case, the court finds that petitioner has sustained its burden that the premises were utilized for the sale of drugs in violation pursuant to the terms of RPAPL Section 711(5). CONCLUSION Based upon the forgoing, the court issues a final judgment in favor of the petitioner against the respondent. The petition is amended to name Prince Israel Gibbs as a co-respondent in place and instead of “John Doe.” The proceeding is dismissed as to all other respondents. The warrant shall issue forthwith. As set forth in RPAPL Section 753(3) stay provisions “shall not apply to a proceeding…to recover possession upon the ground that an occupant is holding over and is objectionable if the landlord shall establish to the satisfaction of the court that such occupant is objectionable.” The court must weigh evidence of the illegal activity which took place in the premises against the safety of the other tenants in the building in determining whether respondent is an objectionable occupant. Given the recent amendment of RPAPL Section 753, the court has no guidance in the form of precedent. In this instance, there is no allegation that respondent is currently engaging in illegal conduct or in activity that endangers the health, safety and welfare of others. Respondent has resided in the premise his entire life. While it will be difficult for him to relocate, the nature of the proceeding together with the vulnerability of the other tenants in the building militates against a lengthy stay. Based upon the foregoing, execution of the judgment and warrant are stayed through October 31, 2019 for respondents to relocate provided rent is paid at $787.77 per month by the 15th of each month during the stay. This constitutes the order and decision of the court. Dated: July 31, 2019 New York, New York
