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ALTHOUGH THE TENANT HAD VIOLATED CERTAIN PROVISIONS OF THE LEASE, THE EVICTION PENALTY SHOCKED THE CONSCIENCE AS A MATTER OF LAW (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, over a dissent, determined the housing authority’s (THA’s) eviction of petitioner was too severe a penalty for her alleged sporadic failure to make timely rent payments, her alleged failure to allow an exterminator to enter the apartment, and her single allegedly “rude and loud” phone conversation with a THA employee. The dissenter argued eviction was an appropriate penalty:

Here, although the petitioner made late rental payments during the subject period, she did eventually pay all of the rent due, as well as the fees that had accrued on the account. Moreover, the record establishes that during the subject period, the amount of the petitioner’s rent fluctuated monthly, with little advance notice, such that her December 2015 rent was nearly three times as much as her September 2015 rent. …

… [T]he two isolated incidents concerning the exterminator and the offensive telephone conversation were not proportionate to the penalty of eviction. First, although the petitioner denied the exterminator entry to her apartment on March 14, 2016, the THA’s evidence otherwise established that the petitioner was the one who had requested treatment for bedbugs, she fully complied with the first treatment, and over several years of biweekly extermination for other pests, she had never denied the exterminator entry … . …

… [T]he petitioner’s single threat of violence occurred in a heated telephone conversation, immediately before the petitioner hung up in frustration and anger. The THA employee to whom the comment was directed testified at the hearing that she found the comment “[e]xtraordinary and extremely rude,” but she did not testify that she was frightened or that she understood the comment to be a genuine threat of violence. …

The penalty imposed is so grave in its impact on the petitioner that it is disproportionate to the misconduct, or the risk of harm to the THA or the public. Under the circumstances of this case, the penalty of termination of the petitioner’s tenancy is so disproportionate to the offenses committed as to be shocking to the judicial conscience as a matter of law … . Matter of Jacobs v Tuckahoe Hous. Auth., 2020 NY Slip Op 04392, Second Dept 8-5-20

 

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