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.
For
more information: come in, call us or visit us online.
Levy
& Nau P.C. | attorneys at law
854
Fulton Street, Brooklyn NY 11238
718-622-8150
www.LevyNau.com
Protecting Brooklyn
Homeowners since 1987
