Legal Aid Saves the Home of Domestic Violence Survivor
FRIDAY, JANUARY 02, 2009

Gretchen Gonzalez, a staff attorney in the Harlem Community Law Office, was successful in saving the home of a domestic violence survivor by arguing that the Violence Against Women Act precluded Metro North from terminating the Section 8 tenancy of her client. The decision, which addressed an issue of first impression, was the subject of a story in today's New York Law Journal. Gretchen called the decision a wonderful result for domestic violence survivors.



New York Law Journal
Federal Law Bars Eviction of Domestic Violence Victim, Judge Rules
By Noeleen G. Walder
01-02-2009

A Manhattan judge has granted a domestic violence victim's bid to remain in a federally subsidized apartment.

Housing Court Judge Gerald Lebovits (See Profile) held that the attempt of Metro North Owners LLC to evict Sonya Thorpe was barred by the federal Violence Against Women Act of 2005.

Even if Metro North's allegation that Ms. Thorpe stabbed John Capers was "not based on hearsay and conclusory statements, the court would find that the supposed stabbing incident is a domestic dispute and that respondent is a victim or a threatened victim of domestic violence," the judge wrote in Metro North Owners, LLC v. Thorpe, 79149/08.

The Housing Court decision will be published Monday.

According to the decision, Metro North accused Ms. Thorpe of stabbing Mr. Capers on April 1, 2008. Claiming that this and other incidents amounted to a nuisance and violation of Ms. Thorpe's lease, the landlord brought a holdover proceeding to evict Ms. Thorpe from her Section 8 apartment at 420 East 102nd St.

Section 8 is a federal program that assists qualified, low-income tenants to obtain housing by providing landlords with rental subsidies.

Ms. Thorpe, in turn, maintained that she was the victim, not the aggressor, in the April incident. To establish her history as a domestic violence victim, Ms. Thorpe submitted evidence of three prior police complaints and a March 2007 order of protection obtained against Mr. Capers.

In an affidavit, Ms. Thorpe alleged that on April 1 an intoxicated Mr. Capers forced his way into her apartment and threw her into a glass cabinet in the bathroom. She denied stabbing Mr. Capers, and claimed he had hurt himself on the glass during the alleged break-in.

As a domestic violence victim, Ms. Thorpe maintained that the Violence Against Women Act precluded Metro North from terminating her Section 8 tenancy and moved for summary judgment.

The act provides that "[a]n incident or incidents of actual or threatened domestic violence . . . will not be construed as a serious or repeated violation of the lease by the victim or threatened victim of that violence" and prohibits terminating the tenancy or occupancy of such a victim because of criminal activity "engage[d] in by a . . . guest" that directly relates to domestic violence [42 USC §1437 f(c)(9) (B) and (C)(i)].

Metro North countered Ms. Thorpe's motion by submitting an affidavit from its property manager, Miriam Velette, who claimed Ms. Thorpe allowed Mr. Capers access to the building, even after she had an order of protection.

According to Ms. Velette, Ms. Thorpe objected when the building's security refused to let Mr. Capers in the building, and "engaged in loud fighting, yelling, and screaming with [Mr. Capers] who is apparently the respondent's ex-husband/boyfriend" on a number of occasions.

Ms. Vellete accused Ms. Thorpe of stabbing Mr. Capers and asserted that this violent behavior proved that she was a threat to other tenants' safety.

Judge Lebovits disagreed.

Not only was Ms. Vellete unfamiliar with the relevant facts but she "provide[d] no reliable basis to explain how she obtained her information," the judge wrote. Calling Ms. Vellete's affidavit "unsubstantiated and conclusory," the judge also refused to credit an affidavit provide by the landlord's security guard, Specialist R. Ward, who said that Mr. Capers told him "he had been stabbed."

Like Mr. Vellete's testimony, the guard's report is " hearsay because Ward is not knowledgable of the relevant facts," Judge Lebovits wrote. However, even if petitioner's evidence were not predicated on "hearsay and conclusory statements," the judge concluded that the landlord had failed to sufficiently refute that Ms. Thorpe was entitled to protection under the Violence Against Women Act.

Ms. Vellete's claims that Ms. Thorpe had permitted Mr. Capers to enter the building after obtaining an order of protection could be attributed to battered-woman syndrome - a phenomenon affecting the conduct of abused women that includes inconsistent behavior that "allows the victim to anticipate oncoming violence and entices her to remain with her abuser after the violence ends," Justice Lebovitz wrote in granting Ms. Thorpe's motion for summary judgment.

Gary Friedman and Neil Sonnenfeldt of Gutman, Mintz, Baker & Sonnenfeldt , who represent the landlord, could not be reached for comment.

Gretchen Gonzalez of the Legal Aid Society's Harlem Community Offices represented Ms. Thorpe. Ms. Gonzalez said the decision, which addressed an issue of first impression, was a "wonderful" result for "domestic violence victims who have so much taken away from them by their abuser."