New York City Hous. Auth. v Otero (2004 NY Slip Op 51454(U))

New York City Hous. Auth. v Otero

2004 NY Slip Op 51454(U)

Decided on November 24, 2004

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

NEW YORK CITY HOUSING AUTHORITY, Petitioner-Landlord-Respondent,

against

MIRIAM OTERO, Respondent-Tenant-Appellant.

Tenant appeals from a final judgment of the Civil Court, New York County, entered September 10, 2003 (Cyril K. Bedford, J.) which granted possession to landlord in a holdover summary proceeding based upon illegal use of the premises.

Final judgment entered September 10, 2003 (Cyril K. Bedford, J.) affirmed, with $25 costs.

The evidence at trial established that pursuant to a search warrant, police officers recovered a package containing 288 bags of cocaine, which was observed by the officers being thrown from a window of the subject premises. This evidence was not refuted. The police also recovered digital scales, a speed loader, a stun gun, multiple rounds of ammunition, a metal safe, over $6,000 in cash, and marijuana from two bedrooms in tenant's apartment. The bedrooms were previously occupied by tenant's two sons, who visited the apartment on a daily basis and were arrested inside the apartment during the search. When arrested, one of the sons gave the address of the subject apartment as his current residence. Both sons pleaded guilty to reduced charges of criminal possession of a controlled substance in the second degree, a class A-II felony. Based upon these demonstrated facts, the trial court was warranted in concluding that tenant's apartment was being used for illegal business purposes and in awarding a possessory judgment in [*2]favor of the landlord (RPAPL §711, subd. 5).

Although tenant was not present during the search, her testimony that she was not aware of and did not acquiesce in the use of the apartment for illegal purposes was properly rejected by the trial court. The amount of contraband recovered negates tenant's denial of knowledge regarding the illegal activity (see New York County District Attorney's Office v Pizarro, NYLJ, June 24, 1993, at 24, col 6 [App Term, 1st Dep't]) and gives rise to an inference that tenant knew or should have known that the apartment was being used as a base for illegal drug activity (see Matter of 88-09 Realty, LLC v Hill, 305 AD2d 409, 410 [2003]).

This constitutes the decision and order of the court.
I concur.
I concur.
I concur.
Decision Date: November 24, 2004