City Court of Cohoes, February 28, 2018

Goldberger and Kremer, Albany (Brian Kremer of counsel), for petitioner.

Legal Aid Society of Northeastern New York (Debra Ann Collura of counsel) for respondent.

Cohoes Housing Authority (CHA) brought a holdover proceeding against Jane Doe.^[FN*] The court held a trial and the testimony and evidence established the following:

On a warm late fall afternoon, the children at the Cohoes Manor Sites were playing basketball. Among the participants were Lisa Simmons' 12-year-old son and Jane Doe's six-year-old daughter. Simmons was camped outside her apartment observing the game. She testified that her son called her over for a drink. She walked the short distance from where she was seated to the children.

At this point, Doe and Simmons became involved. Simmons claims that Doe inexplicably became incensed that Simmons was providing her own child with a drink. Simmons, according to her, responded calmly that there was no reason to be upset—it was only a drink on a hot day. Simmons says that Doe refused to let it go. Instead, Doe responded to Simmons' innocuous comments by calling her fat and hurling curses at her. Upon cross-examination, Simmons expanded on this part of her story. She amended her direct testimony to include that she, in addition to giving her son a drink, also complimented a child on the fantastic shot he had made—and because of the clamor on the playground, she, of course, had to raise her voice at the child to be heard.

Simmons says that the next thing that she did was to turn and walk away. At this point, she admits saying that "I rather be fat than a ho," but she assured the court that this remark was directed at no one in particular and by no means towards{**59 Misc 3d at 574} Doe who had just previously called her fat. After making this comment, Simmons heard someone running at her. She did not pivot to see what was happening, but rather she kept her back to the fast-approaching person. According to Simmons, Doe knocked her to the ground, mounted her and then rained multiple blows upon [*2]her face and neck.

Except for the part of her testimony where Simmons says that she raised her voice on the basketball court and was later hit by Doe, the court finds Simmons' testimony incredible and unreliable. Rather, the court believes the most honest and accurate version of events comes from Emily Macie. Macie also resides at Cohoes Manor Sites with Doe and Simmons. On the day in question, Macie was on Doe's porch with Doe watching the children play basketball. She remembers that the children were horsing around as usual—"they were being crazy and rowdy like normal kids." At some point, Simmons rose from her chair and started yelling at the children in an altogether inappropriate manner. Macie heard Simmons berating the youths by demanding that they stop their "bull sh**" and calling certain children "scumbags," including Doe's six-year-old daughter.

At this juncture, Doe intervened and engaged Simmons in a verbal altercation. The unpleasantries escalated—Doe called Simmons fat, Simmons called Doe a whore—no more words were exchanged after that. Doe bolted from her porch and made a beeline for Simmons who was at the gate to the basketball court. Macie pursued. Doe connected with two lefts to Simmons' head before Macie wrestled Doe away. Simmons never swung back at Doe. After being hit, Simmons retreated to her chair, sat down and then flopped to the ground.

The Cohoes Police were quickly summoned to the scene. Doe was charged with harassment in violation of Penal Law § 240.26 (1). When the police asked Simmons if she needed medical attention, Simmons told the officer that she was fine. The next day, two bruises had manifested on Simmons' face—one on the lower right side of her jaw and one on her right ear.

CHA was informed of the incident which it considered a breach of the lease. In particular, Doe violated the lease covenant that she would not engage in criminal activity which threatened the health, safety and peaceful enjoyment of another tenant. Doe wrote a letter to CHA explaining that she was provoked, that she had special circumstances that explained her violent reaction to the provocation and that she{**59 Misc 3d at 575} was remorseful. CHA was unpersuaded that Doe should receive a second chance; it remained steadfast in its demand that Doe surrender possession of the apartment. When Doe refused to vacate her apartment, CHA commenced this holdover proceeding.

With some additional elaboration and collaboration, Doe's letter mirrored her trial testimony. While the details of Doe's explanation are quite sensitive (and personally painful), nevertheless, they need an exposition to comprehend fully Doe's defense.

First, Doe testified that when Simmons called her daughter a scumbag, she went into "mamma bear" mode and began yelling, swearing and insulting Simmons. But the moment that Simmons looked straight at her and called her a whore, "a switch flipped" and she launched a physical attack upon Simmons. Doe explained there was a compelling reason for the switch flipping.

Doe testified that at age 14 she was raped and that her rapist kept calling her a whore throughout the entire ordeal. The rape had a devastating effect; it produced profound anger issues. Doe, at the time of this incident, was being treated by a psychiatrist for intermittent explosive disorder. Just before the incident, she had changed medication and before it became effective, she was susceptible to angry outbursts. Finally, Doe testified that she was remorseful for her actions, acknowledged that she was wrong to punch Simmons and apologized to her victim.

The court begins its analysis of the case with its sua sponte decision to caption the case with a pseudonym. As one court recently noted "[t]here is little case law on the use of anonymous captions" (Matter of Doe v New York City Police Dept., 39 Misc 3d 1229[A], 2013 NY Slip Op 50801[U] [Sup Ct, NY County 2013]). Only in the rare case should a court permit a pseudonym. Court proceedings are public for salient reasons. Open court proceedings are a disinfectant against injustice, incompetence, perjury and fraud. The ancient presumption of open judicial proceedings "ensure[s] that [the proceedings] are conducted efficiently, honestly and fairly" (Danco Labs. v Chemical Works of Gedeon Richter, 274 AD2d 1, 7 [1st Dept 2000] [citations and internal quotation marks omitted]).

Having a person or persons know that Doe was brutally raped which required her to receive psychiatric treatment because they desired to understand or observe this litigation,{**59 Misc 3d at 576} as noted, has important purposes. However, this is not the court's concern. The trial was open to the public and the record has not been sealed. Thus, the public had and has full access to the record; no sacrifice to public access was or will be made.

Information technology has changed the calculus for the use of anonymous captions. The court worries that a person, without the slightest interest in or knowledge of this judicial proceeding, could plug Doe's name into an Internet search engine just to find a little information about her and stumble upon the account of her rape. Instantaneous public access to vast amounts of information has many virtues; however, it has, at least, this vice—exposing Doe's personal and horrific experience to the curious, simply because she was a defendant in a lawsuit. This is intolerable. Since revealing Doe's true identity serves none of the important functionary checks associated with open and public judicial proceedings, the court, therefore, will use an anonymous caption.

Turning to the merits of the case, Doe hit Simmons and it was wrong of her to do so. She breached her lease covenant that she would not engage in criminal activity which threatened the health, safety and peaceful enjoyment of another tenant. If the lease was the sole source of the rights between the parties, CHA could lawfully terminate the lease. But the lease is not the sole authority in this case. Doe receives a subsidy under the auspices of the Housing Act of 1937 which is codified in 42 USC § 1437. The federally subsidized housing program provides a reservoir of additional rights including limitations on a housing authority's ability to terminate a lease. A lease termination for public housing authority tenants under the circumstances in this case is governed by 24 CFR 966.4 (l) (2) (i) which provides that a public housing authority, like CHA, "may terminate the tenancy only for . . . [s]erious or repeated violation of material terms of the lease." (Emphasis added.)

Doe does not contest the gravity of her actions. Rather, she argues that eviction is "so disproportionate to [her] offense, in the light of all the circumstances, as to be shocking to one's sense of fairness" (Matter of James v New York City Hous. Auth., 186 AD2d 498, 499-500 [1st Dept 1992]). Therefore, she argues that the petition should be dismissed.

Shocking to fairness is a term courts use often as a conclusion and as such it tends to be empty of precise standards. Recently, the Court of Appeals has instructed lower courts as to at least one boundary line. In Matter of Perez v Rhea (20 NY3d 399 [2013]), the Court warned:{**59 Misc 3d at 577}

"The Appellate Division erred by importing its prior dictum that public housing is 'a tenancy of last resort' into its analysis, thus giving rise to an implicit assumption that any termination of tenancy is a 'drastic penalty' that, by default, is excessive. In short, we share the dissenting Justice's concern that 'universal application' of the Appellate [*4]Division majority's principles 'would result in no tenant of public housing ever being evicted, whatever the grounds' " (id. at 404-405 [citation omitted]).

Instead, the Perez Court instructed judges to "consider each petition on its own merit" (id. at 405). Thus, the unconscionability cannot flow from the nature of the tenancy (public housing authority tenant), but from the nature of the offense. That is, the fact that evicting a poor person from public housing may lead to homelessness is irrelevant.

In addition to the boundary set by the Court of Appeals, this court believes that another boundary is appropriate. Committing a crime, directed towards a person or property, comes with the presumption that eviction is a reasonable remedy and should be enforced absent mitigating factors. Such mitigating factors must be pegged to long recognized doctrines such as provocation, self-defense and diminished mental state. Compassion towards a public housing authority tenant, no matter how well founded (as it is here), cannot be a substitute for dispassionate legal analysis.

Here is the nub of the case. When Simmons called Doe's child a scumbag, rationality exited the situation. Doe became incensed but only lobbed insults and not physical attacks. Simmons had her pride hurt by being rebuked for her ill behavior. Instead of retreating chastened, Simmons escalated the matter by calling Doe a whore—these were fighting words—words "which by their very utterance . . . tend to incite an immediate breach of the peace." (Chaplinsky v New Hampshire, 315 US 568, 572 [1942].)

To be clear, no provocative act, conduct, insult or word, if unaccompanied by an overt act of hostility, will justify an assault (Matter of Levy v World-Telegram, 255 App Div 237, 238-239 [3d Dept 1938]). However, the provocation mitigates the degree of culpability (see e.g. Pirodsky v Pirodsky, 179 AD2d 1066, 1066 [4th Dept 1992]; People v Shelby, 57 Misc 3d 561 [Sup Ct, Richmond County 2017]).

Moreover, Doe exercised self-restraint until she was triggered by a particular word that invoked the horrible nightmare{**59 Misc 3d at 578} of her rape and this trigger occurred at a moment that she was transitioning medication which made her vulnerable to rage.

Implicit in CHA's argument is that Doe is a tinderbox and the physical violence against Simmons crossed a line that makes Doe eternally unsuitable for public housing. These concerns are not irrational. However, Doe was not and is not ignoring her anger issues; she was and is seeking treatment by multiple doctors. Additionally, as a result of being charged with harassment, Simmons received an order of protection against Doe, which carries with it, should it be violated, the stern consequences of the criminal justice system.

The court is of the opinion that Simmons' provocation of Doe, Doe's triggering by the exact word used by a rapist to torment her, the temporary biochemical vulnerability due to transition of medication, Doe's continued medical treatment and the presence of the order of protection make eviction a grossly disproportional consequence. The court dismisses the petition.