A single mother and her five children—three of whom are adults—can be evicted from New York City public housing because police found drugs and a loaded gun in their apartment, a unanimous state appeals panel has ruled, reversing a lower court judge.
The Appellate Division, First Department, ruled Tuesday that it did not matter that no evidence tied the mother, Mary Encarnacion Grant, to the gun or drugs, which apparently were brought to the apartment by her older children and their friends. The panel also rejected Grant’s argument that her younger children should not be punished for their older siblings’ actions.
When she brought the lawsuit to challenge her eviction, Grant had lived in a New York City Housing Authority unit for 23 years, according to the decision. For the last five, she served on the Tenants’ Association Board.
NYCHA sought to evict her after police searched her home and recovered a loaded gun, a “significant amount” of marijuana and a bottle of oxycodone pills, according to the decision. Grant was not at home during the search, and there was no proof that she knew about the gun or the drugs.
According to the opinion, Grant admitted that one of her older sons uses marijuana regularly and that she has encouraged him to seek treatment. She also said she had been encouraging her older sons to move out.
A NYCHA hearing officer ruled that Grant and her family should be evicted. Grant filed an Article 78 petition in challenging that finding.
Ling-Cohan granted the petition, holding that in light of Grant’s “unblemished record,” long-term tenancy and responsibility to her minor children, the penalty of eviction “shocks the conscience and must be vacated.”
In reversing, the First Department noted that Ling-Cohan had partly relied on the First Department’s own 2011 decision in Perez v. Rhea, 87 AD3d 476, which reversed the eviction of a tenant who had been found to conceal some of her income.
The First Department, in Perez, said that “the forfeiture of public housing accommodations is a drastic penalty because, for many of its residents, it constitutes a tenancy of last resort.” But that decision was reversed last year by the Court of Appeals in Perez v. Rhea, 20 NY3d 399.
The court specifically took issue with the First Department’s statement that NYCHA often provides a tenancy of last resort. Assuming that status applied to every tenant in a NYCHA apartment, without any specific evidence, it would create a presumption against ever evicting them, the Court of Appeals said. Instead, it found, “reviewing courts must consider each petition on its own merit.”
In light of that reversal, the First Department found that eviction was an appropriate penalty.
“Eviction is undoubtedly a ‘grave’ sanction. However, in permitting drugs and a lethal weapon to be present in her apartment, petitioner committed a serious breach of the code of conduct that is critical to any multiple dwelling community, and which warrants the ultimate penalty,” the panel wrote. “Petitioner’s neighbors have a right to live in a safe and drug-free environment, and petitioner significantly compromised their ability to do so, her alleged ignorance of the activities in her apartment notwithstanding.”
“We further note that petitioner provided no evidence to support the Article 78 court’s implication that she and her younger children would not have the means to find other housing,” the panel wrote. “Thus, we do not have the factual basis to conclude that eviction will actually lead to that result” the Court of Appeals’ Perez decision required.
NYCHA was represented by in-house attorneys Kelly MacNeal and Laura Bellrose. The agency declined comment.
Grant was pro se. Her contact information was not immediately available.