1250 Broadway, 27th Floor New York, NY 10001

DISABLED SENIOR NOT EVICTED FOR DRUG SALES

New York State law typically takes a hard-line position on commercial drug-trafficking within (or in the vicinity of) residential units.

Tenants have been evicted from their homes even when they have not been complicit in the actual drug sales and/or when they have professed ignorance as to the ongoing nature of the illegal activity.

After all, it's pretty hard to come off as an innocent victim when police officers raid your apartment and find an array of contraband, guns, drug paraphernalia, and wads of cash strewn about the unit.

A few weeks ago, the Appellate Division, First Department, signaled a willingness to entertain exceptions to the "zero tolerance" policy previously espoused by precedent.

In 855-79 LLC v Salas , Camen Salas, a septuagenarian who suffered from "serious" medical conditions which (among other things) affected her vision and hearing, came perilously close to losing her rent-stabilized apartment as a result of drug sales and related activity perpetrated by her relatives.

According to the published decisions in the case, police executed a search warrant and uncovered "31 decks of heroin, one bag of cocaine, three bags of marijuana, 26 marijuana cigarettes, and assorted drug paraphernalia, mainly in the bedroom of the single bedroom of the 'railroad' style apartment." That "stash" was enough for the Appellate Term, First Department, to order the senior's eviction from her regulated unit.

On appeal, the Appellate Division, First Department, took pity on Salas and reversed.

Based on its review of the record, the AD1 was of the opinion that the "type and amount of contraband recovered [did] not give rise to an inference of either actual or constructive knowledge by this tenant" that her relatives were engaged in drug sales. Since her son and grandson kept their illicit items hidden in an area where the tenant did not sleep, sold the drugs "outside the apartment late at night," and, because Salas's deteriorated physical and mental state significantly impacted her cognitive functions, knowledge of the "low-level drug sales" could not be imputed to her nor could she be deemed to have acquiesced to the conduct.

As the AD1 observed:

Based on this record, we find that this elderly, disabled tenant should not have to forfeit her right to a rent-stabilized apartment when her son, who was living with her temporarily, and her grandson, who stayed only occasionally, were charged with possession of drugs with intent to sell. Indeed, there is insufficient evidence to permit an inference that tenant was aware of any illegal drug activity being conducted, such that she would be deemed to have acquiesced in any illegal premises use  ... "[T]he eviction of a senior citizen who has no knowledge nor involvement of the illegal drug activity conducted in her apartment will not further serve the purpose of the narcotics eviction program" ....

Now THAT's a senior moment!

For a copy of the Appellate Term's decision, please use this link: 855-79 LLC v. Salas (AT)

For a copy of the Appellate Division's decision, please use this link: 855-79 LLC v Salas (AD)

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