Authorizes the district attorney to intervene in a proceeding brought by the owner of premises upon which the tenant's occupancy is illegal based upon it's use.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7054
SPONSOR: Brindisi TITLE OF BILL: An act to amend the real property actions and
proceedings law, in relation to the intervention of the district attor-
ney having jurisdiction in a proceeding where use or occupancy of resi-
dential rental property is illegal
PURPOSE OR GENERAL IDEA OF BILL:
This bill would give the District Attorney the jurisdiction to intervene
in cases in which a landlord seeks to recover property where use or
occupancy involves any illegal trade or business on the premises.
SUMMARY OF SPECIFIC PROVISIONS:
The District Attorney has jurisdiction if the proceeding for removal is
the result of illegal trade or business.
JUSTIFICATION:
This proposed Bill seeks to address certain provisions of the Real Prop-
erty and Procedure Law (R.P.A.P.L.) concerned with the evictions of
tenants and/or their occupants who use or allow the use of their prem-
ises for illegal trade or business, for example human trafficking, pros-
titution, gambling, trademark counterfeiting, fencing, stolen goods, and
narcotics and marijuana manufacture and sale. Under current law, certain
provisions of the Real Property Law (R.P.L. 231(1) and the R.P.A.P.L.
(R.P.A.P.L. 711(5) and R.P.A.P.L. 715) bestow the right and establish
the procedure by which landlords must pursue evictions of their tenants
and occupants who are using or allowing the use of their property for
purposes of illegal trade or business, historically known as "Bawdy
House Cases." In essence, these statutes currently allow a District
Attorney, as a "duly authorized enforcement agency a duty to enforce the
provisions of the penal law..." R.P.A.P.L. 715(1)) to serve written
notice upon the landlord demanding that an eviction proceeding be initi-
ated against property that is being used for illegal purposes. The land-
lord must then, within five days, start and "diligently pursue" an
eviction proceeding under these statutes. If the landlord fails to do
so, the District Attorney may bring the proceeding.
These actions are an important weapon against human trafficking, prosti-
tution, gambling, trademark counterfeiting, fencing stolen goods, and
narcotics and marijuana manufacture and sale. They protect landlords and
other tenants from the deterioration of their homes and from the
violence that often accompanies these illegal businesses. These actions
further serve to increase the quality of life in neighborhoods, preserv-
ing and protecting the safety and security of our communities. For exam-
ple, there has been a marked decline in the number of brothels in Queens
County and in the number of illegal narcotics enterprises in the Bronx
as a result of these statutes.
Of course, the essential proof in such an action is the proof that the
property has been used for illegal trade or business. This invariably
requires the questioning of police witnesses including undercover police
officers, the introduction of voluminous police reports, as well as the
establishment of the tenant's relationship to the criminal industry.
Obviously, prosecutors are equipped with special expertise in such
matters and are far more experienced in dealing with police witnesses,
police documentation, including laboratory analyses, and are more sensi-
tive to securing the identity of the undercover police officer. They are
also more attuned to dealing with the confidential information that is
often attached to search warrant cases, ever-aware of the potentially
lethal consequences of classified information being published. On the
other hand, landlord-tenant attorneys possess more expertise in issues
relating to tenancy matters, succession rights and possessory interests
in property.
Historically, in situations where the landlord brought a proceeding
pursuant to a demand letter from the District Attorney's Office, the
practice had been for prosecutors to assist the landlord. This ability
to work side-by-side not only reduced the burden on the landlord's
attorney but also made the proceedings more expeditious and fostered the
security of not only police officers but also confidential informants
who risked their lives obtaining information necessary to establish
Probable cause for the issuance of a search warrant. See, Rochdale
Village, Inc. v. Barris, 172 Misc.2d 758 (Civil Court, Queens County
1997).
Recently, however, some courts have began to question the legality of
the District Attorney's appearance, pointing out.that the present statu-
tory structure contemplates such a proceeding by either the landlord or
(if he fails to act) the District Attorney,'but not both. Perdomo v.
Morgenthau, 60 AD3d 435 (1't Dept. 2009); Dennis Lane Apartments, Inc.,
v. Alex Green, 864 N.Y.S.2d 247; 21 Misc.3d 480 (2008).
The ability to work with landlords in order to facilitate an eviction of
this type is one that needs to be preserved. The reason for the eviction
is based on a criminal activity; activity which needs to be addressed by
those who. are routinely dealing with the evidence and fruits of a
crime-the District Attorney's Office. Furthermore the District Attor-
ney's office represents a voice that is not party to the eviction-those
of the neighbors and community members who have to live side by side
with this criminal activity, fearing for their lives at times and the
safety ,of their children. This is not an eviction based on non-payment
or lease provisions being violated, this is an eviction based on the
continuous criminal activity in an residence which endangers those
living in the community surrounding this residence.
The present proposal seeks to simply plug this gap and permit both the
landlord and the District Attorney to bring the action together. This
bill seeks to remove this issue from the judiciary and will firmly and
clearly legislatively establish that these attorneys are permitted to
work in tandem for the .betterment. of the community, for safer streets
and for more secure living and working environments.
PRIOR LEGISLATIVE HISTORY:
2012: S.6026 - Passed Senate
FISCAL IMPLICATIONS:
To be determined.
EFFECTIVE DAME:
This act shall take effect 90 days after it shall have become law.
