
    [737 NYS2d 227]
    88-09 Realty L.L.C., Appellant, v James Hill et al., Respondents, et al., Respondents.
    Supreme Court, Appellate Term, Second Department,
    November 9, 2001
    
      APPEARANCES OF COUNSEL
    
      Horing & Welikson, P. C., Forest Hills {Debra M. Genetin of counsel), for appellant. Priscilla R. Hill, respondent pro se.
    
   OPINION OF THE COURT

Memorandum.

In this RPAPL 711 (5) proceeding, the evidence at trial established that the police did a “controlled buy” operation in the subject apartment (which involves sending a confidential informer into the apartment to purchase narcotics) and that they thereafter obtained a search warrant for the premises. Upon executing the warrant at 7:30 a.m. on April 2, 1999, they recovered eight bags of crack cocaine, which were found underneath a shoe box in the hallway closet, and a ninth bag, which was lying upon the television stand in the bedroom in which tenant’s son James Hill was found sleeping. They also found a silver razor, on which there was crack cocaine residue, on the television stand, three beepers, two scales, and a shoe box containing the drug paraphernalia. James Hill was arrested in the apartment. On June 3, 1999, acting pursuant to information received from a confidential informant, the police executed a second search warrant at the premises. They recovered 10 bags of crack cocaine, one bag of marijuana, and two razor blades with cocaine residue on them. Lossell Johnson, the father of tenant’s grandchild, and a 16-year-old boy were arrested in the apartment. At the time of their arrests, both James Hill and Lossell Johnson told the police that the apartment was their address.

In our view, landlord’s proof established that the premises was regularly used for the preparation and sale of narcotics (RPAPL 711 [5]). While the cases have held that knowledge and acquiescence by the tenant of record in the illegal activity must also be shown in a RPAPL 711 (5) proceeding (e.g., Clifton Ct. v Williams, NYLJ, May 27, 1998, at 28, col 6 [App Term, 2d & 11th Jud Dists]; 220 W. 42 Assocs. v Cohen, 60 Misc 2d 983 [App Term, 1st Dept]; North Shore Assocs. v Knox, 180 Misc 2d 1011; 1895 Grand Concourse Assocs. v Ramos, 179 Misc 2d 508, 511; Lloyd Realty Corp. v Albino, 146 Misc 2d 841), it could be argued that this rule should be re-examined in light of the Appellate Division cases dispensing with the element of knowledge in proceedings to evict tenants from Federally subsidized housing (Matter of Willock v Schenectady Mun. Hous. Auth., 271 AD2d 818, 819; Matter of Syracuse Hous. Auth. v Boule, 265 AD2d 832, 833; cf., Bennis v Michigan, 516 US 442 [Due Process Clause does not mandate that forfeiture statute include innocent-owner defense]; but see, Rucker v Davis, 237 F3d 1113 [9th Cir 2001], cert granted sub nom. Department of Hous. & Urban Dev. v Rucker, 533 US 976; Tyson v New York City Hous. Auth., 369 F Supp 513; Matter of Edwards v Christian, 61 AD2d 1045, affd 46 NY2d 964; Matter of Brown v Popolizio, 166 AD2d 44). We do not reconsider this rule here, however, for it is our view that the evidence introduced was, in any event, sufficient to give rise to an inference of such knowledge and acquiescence and that tenant’s claim that she had no knowledge of what was occurring in her apartment and her claim that no one was supposed to be in her apartment cannot be credited. On the contrary, it is clear that tenant must have known that there were people living in or using her apartment, that she knew or should have known of the use being made of her apartment, particularly after the first arrest in the apartment, and that while she may have taken some steps, she failed or refused to take all the steps necessary to ensure that her apartment was not used for unlawful purposes (see, Matter of Romero v Martinez, 280 AD2d 58, 63 [a tenant “may be held responsible for her own decision to permit the miscreant (son) to enter and stay in the apartment”]; Hauer v Manigault, 160 Misc 758, 760 [“Passive acquiescence may spell consent; and a failure to protest or abate, after knowledge or notice is shown, may evidence acquiescence”]; cf., Spence v Gormley, 387 Mass 258, 439 NE2d 741 [1982] [to defeat the proceeding, the tenant must negate the inference which arises when the wrongdoer is a household member and must show that she was unable to avert the unlawful conduct]). 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 (RPAPL 715; Matter of Walker v Franco, 275 AD2d 627, 628; Hudsonview Co. v Jenkins, 169 Misc 2d 389). Accordingly, we reverse and award possession to landlord.

Patterson, J.

(dissenting). RPAPL 711 (5) provides that a summary proceeding may be maintained where “[t]he premises, or any part thereof, are used or occupied * * * for any illegal trade or manufacture, or other illegal business.” This court has held that “[i]n order to demonstrate ‘use’ of the premises for illegal purposes * * * a tenant must have knowledge of and acquiesce to the use of the demised premises for such an illegal activity” (Clifton Ct. v Williams, NYLJ, May 27, 1998, at 28, col 6 [App Term, 2d & 11th Jud Dists]). Because of the severity of the penalty — a forfeiture of the leasehold — this court has adopted the position that it is an element of the landlord’s burden of proof to show that the tenant participated or acquiesced in the illegal business (see, Clifton Ct. v Williams, supra; see also, 220 W. 42 Assocs. v Cohen, 60 Misc 2d 983). This element of knowledge does not exist here, and I must most respectfully dissent.

The majority, by its holding today, has abolished this critical element of knowledge and acquiescence, determining that the tenant, Priscilla Hill, should be evicted under RPAPL 711 (5). Ms. Hill lives alone and has resided in her rent-stabilized apartment for approximately 22 years. She works four consecutive 24-hour shifts, leaving her home early Wednesdays and returning on Sundays. When the search warrants were executed, Ms. Hill was at work, and her son James was in her apartment. Prior to the issuance of the search warrant, Ms. Hill had obtained an order of protection excluding her son, James Hill, from her home.

Ms. Hill obtained the order of protection seeking to exclude her son from the premises on or about March 27, 1999. On Friday, April 2, 1999, Detective Francis executed a search warrant of Ms. Hill’s apartment. James Hill and another person were found inside the apartment. In the bedroom where James Hill was found sleeping, a single bag of crack cocaine, two empty vials and a razor were found. Underneath a shoe box in the hallway closet, eight bags of crack cocaine were recovered. Three beepers, two scales, and a shoe box containing drug paraphernalia were also recovered. This is the totality of the evidence recovered during the search.

James Hill and the other individual were charged with criminal possession of a controlled substance in the third and seventh degrees and criminally using drug paraphernalia in the second degree.

On Thursday, June 3, 1999, a second search warrant was executed. On that day, when the police executed the warrant, Lossell Johnson and a minor were present in the apartment. Ms. Hill testified that Mr. Johnson has never lived with her and that she did not give him a key to her apartment. The minor was unknown to Ms. Hill. A small amount of contraband was recovered from the living room couch, the spare bedroom, and on the kitchen counter.

The detectives who testified at trial conceded that Ms. Hill was not involved in the two incidents that took place in her apartment. There was no evidence presented of any illegal activity occurring in the apartment when Ms. Hill was present. Indeed, the officers conceded that her apartment was well kept and did not look like a crack house. None of the individuals arrested following the execution of the warrants was ever charged with selling, manufacturing, or trafficking narcotics.

As noted at the outset, RPAPL 711 (5) provides that a special proceeding may be maintained if the premises, or any part thereof, are used or occupied for any illegal trade or manufacture or other illegal business. In the instant case, the illegal activity involves narcotics. Based upon the above facts and after evaluating the credibility of the witnesses, the trial court made a finding that the landlord had failed to demonstrate that Ms. Hill had any knowledge of the use of the premises for illegal activity or that she acquiesced in such use. The majority fails to identify any evidence that would justify disturbing that finding. In the absence of any showing of knowledge, a necessary element as established by prior decisions of this court, the trial court must be affirmed.

While the majority asseverates that it is not reconsidering the requirement that knowledge be established prior to the termination of the tenancy, by inferring knowledge and acquiescence on this record, it has in essence departed from our previous authority and has indeed adopted the standard asserted in Matter of Syracuse Hous. Auth. v Boule (265 AD2d 832) and Matter of Willock v Schenectady Mun. Hous. Auth. (271 AD2d 818, 819). Today’s decision is unceremoniously departing from our prior decision, which specifically requires that knowledge be established.

Indeed, it is “shocking to one’s sense of fairness to terminate the tenancies of persons who have not committed ‘nondesirable acts’ and have not had control over those who have committed such acts” (Matter of Brown v Popolizio, 166 AD2d 44, 57). The intent of RPAPL 711 (5) “is to protect the health, safety and welfare of the other tenants, as well as the nearby community from the dangers and social evils that follow the drug trade” (City of New York v Wright, 222 AD2d 374, 375). Combating the drug crisis infesting the City is an important objective (Matter of Brown v Popolizio, supra). It can and should be accomplished, however, without the need to dispossess a tenant who is wholly unconnected to any illegal activities and indeed has taken legal steps to remove an emancipated adult child from the premises prior to any police involvement.

Scholnick, P. J., and Golia, J., concur; Patterson, J., dissents in a separate memorandum. 
      
      . Mr. Johnson is the father of Ms. Hill’s grandchild.
     
      
      . In Matter of Syracuse Hous. Auth. v Boule, a Fourth Department decision, the Court held a public housing tenant strictly responsible for the illegal activity of an invited guest.
     
      
      . In Matter of Willock v Schenectady Mun. Hous. Auth., the Third Department interpreted a Federal statute providing for termination of a public housing tenant’s lease as being effective regardless of knowledge or fault on the part of the tenant.
     