Judge John Stanley
Landlord sought to terminate tenant Diaz’s tenancy in this holdover suit based on an illegal business or trade being conducted in her apartment. Owner alleged undertenant Suarez possessed a controlled substance and sold two pills to an undercover officer in the vicinity of the premises. It also alleged Suarez and Diaz’s daughter, acting in concert, sold a pill, and that undertenant Caceres possessed and sold marijuana inside the building. The petition alleged landlord received numerous complaints from tenants regarding drug-related activities in the premises. Diaz moved to dismiss arguing there was no allegation the apartment was used for illegal purposes, noting even if an illegal purpose could be inferred, the one alleged incident was insufficient to state a claim under Real Property Actions and Proceedings Law §711(5). The court agreed noting there was no statement in the notice of termination regarding Diaz’s knowledge of the illegal use of her apartment. It stated the usual indicia of an illegal business was absent in this petition, and without same, the total amount of drugs recovered did not rise to the level of an illegal trade. Landlord failed to show the minimal required element that there was an ongoing illegal trade at the premises, and Diaz’s motion was granted.
