Opinion
L & T 86275/2014
06-22-2015
Waterside Plaza Ground Lessee, LLC, Petitioner - Landlord v. Arline Hirsch, Respondent-Tenant JOSEPH HIRSCH, CAROLINE HIRSCH "JOHN DOE" and/or "JANE DOE" Respondents-Undertenants
BELKIN BURDEN WENIG & GOLDMAN, LLP Attorneys for Petitioner By: Brian Y. Epstein, Esq. 270 Madison Avenue New York, New York 10016 212.867.4466 CHARLES H. SMALL, ESQ. Attorney for Respondent 505 8TH Avenue, Suite 701 New York, New York 10018 212.760.8000 JOSEPH HIRSCH CAROLINE HIRSCH Respondents Pro Se 25 Waterside Plaza, Apt. HH New York, New York 10010
BELKIN BURDEN WENIG & GOLDMAN, LLP
Attorneys for Petitioner
By: Brian Y. Epstein, Esq.
270 Madison Avenue
New York, New York 10016
212.867.4466
CHARLES H. SMALL, ESQ.
Attorney for Respondent
505 8TH Avenue, Suite 701
New York, New York 10018
212.760.8000
JOSEPH HIRSCH
CAROLINE HIRSCH
Respondents Pro Se
25 Waterside Plaza, Apt. HH
New York, New York 10010
Sabrina B. Kraus, J.
This summary holdover proceeding was commenced by WATERSIDE PLAZA GROUND LESSEE, LLC, (Petitioner) against ARLINE HIRSCH (Respondent) the tenant of record of 25 Waterside Plaza, Apt. HH, New York, NY 10010 (Subject Premises) based on the allegation that the Subject Premises were being used for the sale of narcotics. JOSEPH HIRSCH(Hirsch) is Respondent's son and resides in the Subject Premises, along his wife CAROLINE HIRSCH(CH). PROCEDURAL HISTORY
The petition is dated November 2014, and the proceeding was initially returnable on December 15, 2014. Respondent appeared by counsel on the initial return date, and the proceeding was adjourned to January 21, 2015, pursuant to a stipulation wherein respondents consented to the jurisdiction of the court.
Respondent moved for dismissal of the proceeding on January 21, 2015. The motion was denied by the court (Kaplan, J) on March 4, 2015, and the proceeding was scheduled for trial on April 15, 2015.
Respondent filed an answer, verified in March 2015, denying the allegations in the petition and asserting a counterclaim for attorneys' fees.
On June 16, 2015, the proceeding was assigned to Part R for trial, and the trial commenced. The trial continued on June 19th and concluded on June 22, 2015, when the court reserved decision. FINDINGS OF FACT
On October 7, 2014, Judge McGrath of Criminal Court found probable cause had been established to issue a search warrant for the Subject Premises (Ex 1). Detectives from NYPD executed the search warrant on October 9, 2014. They recovered from the Subject Premises 35 glassine envelopes containing Heroin, approximately $600 in cash, scales and other items.
As a result Hirsch was arrested. On March 25, 2015, Hirsch pled guilty to possession (Ex D).
Petitioner presented the credible testimony of three experienced detectives from NYPD, who all concluded that based on the items recovered, and in particular the amount of glassine envelopes containing heroine, Hirsch was selling heroin from the Subject Premises. Additionally, Detective Joseph Pira, testified that the search warrant had been based on previous undercover sales by Hirsch at the Subject Premises, and that he had been at the Subject Premises on one occasion for such a sale.
Respondent also put in evidence regarding a related proceeding in Supreme Court under Index Number 450214/15 (Ex F). These documents include an affidavit from Seargeant Robert Clark, Shield Number 253, who indicated that he participated in controlled buys from the Subject Premises using confidential informants in 2014 during the weeks of July 27, September 1, September 14, September 28, and October 2, for a total of seven documented sales of heroin from the Subject Premises during this period. In each instance an male inside the Subject Premises sold heroin to the confidential informant.
Respondent and Hirsch also testified at trial. The court did not find either witness to be credible. Hirsch testified first. Hirsch lived in the Subject Premises from the early 1970s until he
was 25. At age 25 Hirsch got married and moved out. Hirsch and CH moved back into the Subject Premises in 2006 or 2007 and have lived there with Respondent since.
The Subject Premises is a duplex. Respondent occupies the first floor and Hircsh and CH occupy a bedroom on the second floor. Hirsch keeps the door to his bedroom locked and does not provide Respondent with a key. Hirsch keeps the door to his bedroom locked even when he is in the Subject Premises, and any time he leaves the Subject Premises, although he testified that for the past five years, he rarely leaves the Subject Premises. Hirsch testified that the heroine recovered at the Subject Premises was for his own personal use and that 35 glassine bags represents about 1 week's worth of what he used at the time. Hirsch testified that he has never sold heroine. Hirsch testified that he hasn't used either the digital scale for three years, and that he hasn't used the other scale recovered for decades, although Detective Pira testified credibly that the scales were recovered from a shelf close to Hirsch's bed. Hirsch testified that the fanny pack recovered belonged to CH, and that the $100 bill recovered was not real currency and was hanging in a frame on the wall. Hirsch testified the balance of the cash belonged to CH.
CH was present through out the trial, but did not testify.
Hirsch was recalled by Respondent, over Petitioner's objection for additional testimony. Hirsch testified that he has a history of heroine and cocaine use, and started using heroine again in September 2013. Hirsch further testified that between September 2013 and the arrest he used it on an on again off again basis. Hirsch testified that he has not been employed for years and that he receives food stamps and pays no rent. Hirsch testified that he has a bank account and a trust with several hundreds of thousands of dollars in it, and that he lives off of that and pays for his drugs with that money. The court did not find Hirsch to be a credible witness.
Respondent also testified. Respondent is 79 years old and she has lived in the Subject Premises for 42 years. Respondent has a BS and a masters degree. Respondent testified that from 2007 through 2014 she worked as a substitute teacher two to five days a week, but was otherwise regularly present at the Subject Premises. Respondent was testified that she was aware that Hirsch had previously used drugs and that he relapsed approximately six months or so prior to his arrest in October 2014. Respondent testified incredibly that she did not know that her son was using heroine at the time of the arrest because her son's behavior did not change when he was using.
The court finds that Petitioner established that the Subject Premises was being used for the sale of narcotics by a preponderance of the credible evidence. The court credits the opinion testimony of the three detectives, that the items recovered are consistent with this conclusion and inconsistent with personal use. This is further supported by evidence introduced by Respondent of seven prior controlled buys at the Subject Premises.
Moreover, the court finds that Respondent knew or should have known that this illegal activity was taking place. Respondent admitted that she knew there was heroine in the Subject Premisses, as she admitted she was aware that Hirsch had used and the relapsed. Additionally, the fact that Hirsch kept the door to his room locked at all times and did not provide Respondent with a key should have caused Respondent to look closer at what was happening in the Subject Premises. Finally, the court did not find Respondent's denial of knowledge of the sales credible.
DISCUSSION
RPAPL § 711(5) authorizes the commencement of a summary holdover proceeding where "the premises, or any part thereof, are used or occupied ... for any illegal trade or manufacture or other illegal business."
"It is not necessary that the tenant actually participate in the illegal activity; it is sufficient that "the acts and conduct complained of warrant the inference of acquiescence (88-09 Realty, LLC v Hill 305 Ad2d 409, at 410 citing City of New York v Goldman 78 Misc 2d 693)."
Respondent asks the court to rely on 855-79 LLC v Salas (40 AD3d 553) in finding that Respondent had no reason to be aware of Hirsch's illegal activity. However, the facts in this proceeding are readily distinguishable from those in Salas. In Salas the tenant had a limited ability to hear and see, and was deemed unable to adequately understand the nature of the proceeding leading to the appointment of a GAL. Additionally, the arrest of her grandson and the alleged sales took place outside the apartment. In this proceeding, Respondent suffered no such infirmities, acknowledged being aware of Hirch's drug use and heroin inside the Subject Premises, there were seven controlled purchases in the Subject Premises over a period from July through September 2014, and the fact that Hirsch locked Respondent out of a room at all times should have raised a red flag for Respondent. Moreover in Salas, the tenant did not testify, in this proceeding, Respondent did testify and the court determined that her testimony lacked credibility.
CONCLUSION
Based on the foregoing the court finds that Petitioner established by a preponderance of credible evidence that the Subject Premises was being used for the sale of heroine and that Respondent knew or should have known of this illegal activity. Petitioner is awarded a final judgment of possession as against all three named respondents. The proceeding was discontinued as to "John Doe" and "Jane Doe." The warrant of eviction shall issue forthwith. Execution of the warrant is stayed for ten days.
This constitutes the decision and order of the Court.
Dated: New York, New York
June 22, 2015
__________________
Sabrina B. Kraus, JHC
Parties may pick up Trial Exhibits within thirty days of the date of this decision from Window 9 on the second floor in the clerk's office. After thirty days, the exhibits may be shredded in accordance with administrative directives.