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HIV Law Project Wins Motion to Dismiss in Drug Holdover Case


HIV Law Project's client has long lived with HIV and a substance abuse issue. In a harm reduction program, the client admittedly continued to use illegal drugs off and on for personal use. The client did not have a criminal record and vehemently denied engaging in the sale of illegal drugs at any time.

In February 2011, the client had two acquaintances visit him at his apartment. Prior to coming to the clients' apartment and, unbeknowst to the client, his acquaintances had sold narcotics to an undercover officer in the building. Subsequently, the client and his two guests were arrested in the client's apartment. The police found the client's guests possessed some narcotics and a large amount of cash, but the client himself only possessed one small pipe with narcotic residue. The acquaintances were charged with both possession and the sale of a controlled substance. The client was charge only with possession.

The client's landlord subsequently commenced a holdover proceeding to evict the tenant on the basis of the illegal trade, manufacture or business. To prevail, the landlord must show that the tenant customarily or habitually used the premises for illegal purposes. This was not the circumstances in the client's case. In fact, the client had never used the premises for illegal trade, manufacture or business. His real crime was being addicted to drugs and, as a drug user, being connected with people who did in fact sell illegal drugs.

After reviewing the facts of the case, HIV Law Project undertook representation. The client's homelessness would serve no legitimate public policy purpose and it would likely further impede the client's ability to maintain his HIV care and overcome his addiction. Moreover, the client had not engaged in the impermissible activity alleged in the petition and only a single incident was alleged.

In October of 2011, HIV Law Project filed a motion to dismiss, alleging the facts contained in the petition, even if taken as true, did not state a cause of action. The court granted our motion on March 19, 2012 and the case was dismissed with leave for the landlord to replead the case. However, since no acts occured before or after the isolated incident alleged in the petition, repleading would be superfluous. The landlord is unlikely to take further action to evict the client on this ground. The client's tenancy was protected.