Judge John Stanley
Landlord commenced a holdover proceeding against the Section 8 tenant, Linton, at the request of the District Attorney’s office, based on a lease breach. Landlord alleged the premises were used for illegal purposes, including illegal trade or business in the sale or manufacturing of a controlled substance. The action stemmed from Linton’s arrest for criminal sale of marijuana in a public place in or near the complex. Linton moved for dismissal arguing landlord failed to allege the premises were used for any illegal trade or business, and failed to state a cause of action. The court noted Real Property Actions and Procedure Law §711(5) allowed a summary proceeding only if the premises were used for an illegal trade or business, noting the term "use" meant doing something habitually upon the premises. It noted more than a single act was required, stating an ongoing activity was necessary. Here, the court found the petition failed to allege in which way the premises were used for a purpose furthering an illegal business, and failed to state facts giving rise to the use of the premises for an illegal business. It noted all the usual indicia of an illegal business were absent in the petition, granting Linton’s motion for dismissal.
