The Niagara Falls Defense to Eviction

There is a scene in the Three Stooges 1944 short film Gents Without Cents where Moe’s angry and violent outburst against anyone within range is triggered by the straight man’s utterance of the phrase “Niagara Falls”. It is a classic Vaudeville bit that has been performed by countless performers in decades past.

In the scene, after hearing the fateful words, Moe’s eyes glaze over as he remembers a traumatic incident. “Slowly I turned,” he says to no one in particular, “step by step, inch by inch.” He re-enacts his past encounter with the man who did him wrong, and delivers his physical vengeance upon the nearest innocent target who is an unwilling, and unwitting, stand-in for Moe’s nemesis.

Now, a Housing Court judge has essentially allowed a violent tenant to avoid eviction using a similar excuse.

In a holdover case just decided, Alice and Trixie were tenants, living in public housing with their kids. (Names have been changed.)

The kids were playing outside their apartment building. Trouble followed when Alice and Trixie got into an argument, and then a physical fight. The police were called. Alice was arrested and charged with criminal harassment. Trixie got an order of protection against Alice.

Trixie told the police that she was OK, but the next day, two bruises appeared on her face. The Housing Authority was notified, and sought to evict Alice on the ground that she violated her lease by engaging in criminal activity that threatened the health, safety or peaceful enjoyment of another tenant.

Alice protested that she had been provoked, that she had special circumstances that explained her violent reaction, and she was sorry. The Housing Authority refused to give Alice a second chance, and started a holdover proceeding against her.

Trixie’s Testimony at the Trial

Trixie testified that her son, playing outside on a hot day, asked her for a drink. Alice became angry for no good reason. Trixie explained to Alice that there was no reason to be upset; it was only a drink on a hot day.

According to Trixie, Alice called her fat and cursed at her. Trixie, not wiling to let the insult go unanswered, then said, to no one in particular, “I’d rather be fat than a ho.” Alice then physically assaulted Trixie.

Alice’s Testimony

Alice testified that when Trixie called her daughter a bad name, she, Alice, went into mama-bear mode and began swearing and insulting Trixie. Alice admitted that when Trixie called her a whore, a switch flipped and Alice did physically attack Trixie. Alice said she reacted like that, and “lost it”, because she is sensitive about being called a whore; she was raped at age 14, and the rapist kept calling her a whore throughout the horrific episode.

Ever since the rape, said Alice, she has had serious anger issues. She testified that she is undergoing psychiatric care for intermittent explosive disorder, and just before the incident, she changed medications. Before the new medication kicked in, she was susceptible to angry outbursts. Alice admitted that she was wrong to punch Trixie, and she apologized.

The Rest of the Story

Another tenant, Carmen, who was not involved in this crisis, also testified. Carmen said that the children were playing in a rowdy manner. Trixie yelled at the children inappropriately. Alice intervened and engaged Trixie verbally. Trixie retreated, but Alice ran after Trixie and assaulted her, whereupon the police were called in.

The Lawyers

Alice’s lawyer argued that their client recognized that she did something bad, that she was sorry, that she has issues, and she deserves a second chance. Eviction is a consequence so disproportionate to her offense, in light of all the circumstances, that it is shocking to one’s sense of fairness.

The Housing Authority’s lawyer said that the lease rules. Alice promised not to commit a crime that harms another tenant. That is sufficient to terminate her lease. Alice is a “tinder box” and the physical violence against Trixie crossed a line that makes Alice unsuitable for public housing.

The Judge

The judge did not believe Trixie’s version of the events. He mostly believed Carmen, who was not involved. The judge ruled that Alice did wrongfully hit Trixie, and did breach her lease covenant not to engage in criminal activity.

If the lease was the only source of rights between Alice and the Housing Authority, the Authority could terminate Alice’s lease. But there is more. There is the Federal Section 8 voucher program, which gives tenants additional rights. If you take Section 8 as a landlord, you can only terminate a tenancy for serious or repeated violation of the material terms of the lease.

“Shocking to fairness” is a phrase that has no precise standards. Compassion for the tenant cannot be a substitute for dispassionate legal analysis. The court cannot consider the fact that public housing is a last resort for most tenants, or that eviction might result in homelessness. Committing a crime against a person or property comes with the presumption that eviction is a reasonable remedy. But that might change with mitigating factors.

Mitigating factors can include provocation, self-defense and reduced mental state.

Here, after Trixie insulted the children, Alice became agitated but only reacted with insults and not a physical attack. Trixie, for her part, instead of backing off, escalated the matter by calling Alice a whore. These were fighting words, which, by their very utterance, tend to incite an immediate breach of the peace.

Although no provocative act, insult or word, without an overt act of hostility, will justify an assault, the provocation mitigates the degree of culpability. Here, Alice exercised self-restraint until she was triggered by a word that invoked the horrible nightmare of her rape. This triggering happened at the moment that she was changing medications, which made her vulnerable to rage.

The Housing Authority’s concerns about Alice were reasonable, but Alice is working on her issues. She is seeking treatment from multiple doctors for her anger issues. If Alice violates the order of protection, she will face consequences in the criminal justice system.

The Result

The Court took the position that all this was really Trixie’s fault for provoking Alice and triggering Alice with the exact word the rapist used. All that, together with the temporary biochemical imbalance caused by the medication switch, the continuing medical treatment and the order of protection, make eviction grossly disproportionate.

The court's decision does not indicate whether Trixie actually knew, or had any reason to know, that Alice once was raped, or was on psychiatric medication, or was under medical care, or had an explosive temper, or lost all control upon hearing the word "whore". Whether or not Trixie knew any of this, or had reason to know, was not important to the Court.

And so the landlord's petition was dismissed. Tenant Alice won the right to stay. Watch your back, Trixie.

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Levy & Nau P.C. | attorneys at law

854 Fulton Street, Brooklyn NY 11238

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www.LevyNau.com

Protecting Brooklyn Homeowners since 1987

The Cost of Building

The Mandarins in the New York City Department of Buildings have seen fit, in their limited wisdom, to raise the fines that apply to various DOB violations.

The reason they give for these increases is that the cost of construction in the city has become so high, that violation fines have become insignificant by comparison. Therefore, they say, builders and contractors don't see the existing fines as a deterrent for unsafe practices. For them, it's just another cost of doing business.

I expect that this will have unintended consequences. Every law, rule,tad and penalty ever imposed on us has had unintended consequences - or at least consequences that our duly elected and appointed overlords won't admit to intending.

There is an obvious idea in taxation: the more you tax something, the less of it you'll get. Tax policy depends on this idea. You want less carbon? Tax it more. You want less tobacco? Tax it more.

So too, if you want less construction, tax it more. I'm sure the DOB doesn't see it that way, but that's the way it is. It doesn't matter whether you call a forced payment to the government a tax or a penalty. Either way, you are increasing the cost of the thing.

In this case, that might have the unintended consequence of inhibiting construction, or at least, inhibiting requests for construction permits. Whether the intended consequence of increasing safety comes to pass is something we won't know for a long time.

For the raw information on the new fines, see https://rules.cityofnewyork.us/content/amendment-buildings-penalty-schedule-0.

The Gears of Justice Grind Slowly

Justice takes a long time. Swift justice is an oxymoron. We have become as accustomed to this truism as we have to traffic jams on the Long Island Expressway at two o'clock in the morning.

Sometimes the sloth-like pace of justice is the result of lawyers delaying things. Not always, but sometimes. Other times the culprit might be a judge who takes too long to render a decision, or a clerk's office that loses critical documents. I see all of that, every month.

Sometimes, however, it's not the fault of the court system or those of us connected to it. Sometimes it's family.

I was in Surrogate's Court this morning on a simple probate matter. A woman was smart enough to prepare a will before she died. It was a simple will. Nothing fancy. She left her stuff to a handful of relatives - but not all the relatives who would have benefited if she had no will.

So now we had relatives who felt no incentive to cooperate with the process, because, after all, what was in it for them? Must be nice to have family like that.

We had to deliver a "citation" to one of those relatives. A citation in a Surrogate's Court probate proceeding is simply formal notice that if you want to object to the will, or you have a problem with the executor, you must come to court at 9:30 in the morning on a date stated in the citation. If you don't show up, the court assumes you are OK with the proceeding moving ahead.

Court rules required that the citation be delivered in-hand. We sent a sheriff's deputy to the relative's home. He wouldn't open the door. Three times the deputy went, and three times he was rebuffed.

So now, thanks to this loving relative, the rest of the family must wait even longer for the decedent's simple will to be probated, and the family must spend more money to get a court order allowing service of the citation by alternate means.

Not my idea of family values.