Authorizes the district attorney to intervene in a proceeding brought by the owner of premises upon which the tenant's occupancy is illegal

Summary of specific provisions

The District Attorney has jurisdiction if the proceeding for removal is the result of illegal trade or busi- ness.

Justification

This proposed Bill seeks to address certain provisions of the Real Property 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 premises for illegal trade or business, for example human traf- ficking, prostitution, 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, histor- ically known as "Bawdy House Cases." In essence, these statutes current- ly allow a District Attorney, as a "duly authorized enforcement agency ... under 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 initiated against property that is being used for illegal purposes. The landlord must then, within five days, start and "diligently pursue" an eviction proceeding under these stat- utes. 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. Harris, 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 Attorney'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 date

This act shall take effect 90 days after it shall have become law.