Owner Waited Too Long to Evict Resident for Son’s Criminal Activity

Facts: An owner served a Section 8 resident with a 30-day termination notice for various illegal activity, which constitutes a breach of the lease. According to the termination notice, on July 10, 2012, the resident’s son was arrested on charges of gang assault in the first degree, and assault in the third degree, for the assault of another tenant at the site. Additionally, in 2005, the son had been arrested for the stabbing of another resident, resulting in charges of assault in the first degree. According to the notice, all these incidents constituted criminal activity in breach of the lease, the addendum, and the one-strike policy.

The resident asked the court to dismiss the eviction case. The resident’s son was a co-tenant until his incarceration in 2012. The resident stated that she recertified in October of 2012, 2013, 2014, and 2015. And she claimed that she cannot be evicted for events that occurred almost four years ago, and about 12 years ago, as the owner has waived its right to evict by these delays. The resident asked the court to dismiss the eviction proceedings based on a deficient termination notice.

Ruling: A New York district court ruled in favor of the resident.

Reasoning: Here, the termination notice informed the resident of the specific date and crime that her son allegedly committed, which allowed her to prepare a defense to the eviction proceeding. However, the court stated that it would not consider the criminal claims presented in the notice without additional specification. The court pointed out that the record is devoid of any facts as to how and when her son was convicted (trial or plea of guilty) and was sentenced. Also, there was no proof presented as to why her son was incarcerated. Moreover, although the notice states that the son was arrested in 2012, there is no evidence as to whether this alleged crime was the basis for his incarceration.

The court also held that the repeated certification of the rent subsidy and lease from 2005 until the present constitutes a waiver to assert these claims, even though the owner didn’t intend to keep the resident as a tenant. There was a reasonable period of time to commence an eviction proceeding after the owner had knowledge of the son’s conviction and sentence.

• Park Lake Residences v. Patterson, August 2016