The opinion of the court was delivered by: Gerald Lebovits, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
In this holdover proceeding, petitioner alleges that respondent, Sonya Thorpe, a Section 8 tenant, violated her lease by creating a nuisance. According to petitioner's notice of termination, respondent engaged in illegal and violent behavior during domestic disputes. Petitioner alleges that respondent stabbed John Capers on April 1, 2008, in one of numerous disturbances she allegedly created in and around the building.
Respondent denies these allegations and instead claims that Capers engaged in domestic violence against her. Invoking two subsections of the federal Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005), signed into law on January 5, 2006, to remedy abuses in which landlords tried to evict domestic-violence victims (see Lenora M. Lapidus, Doubly Victimized: Housing Discrimination Against Victims of Domestic Violence, 11 Am U J Gender Soc Pol'y & L 377  [documenting abusive practices and citing strict-liability regulations that allowed domestic-violence victims to be evicted]; Tara M. Vrettos, Note, Victimizing the Victim: Evicting Domestic Violence Victims from Public Housing Based on the Zero-Tolerance Policy, 9 Cardozo Women's LJ 97, 102  [same]; Veronica L. Zoltowski, Note, Zero Tolerance Policies: Fighting Drugs or Punishing Domestic Violence Victims?, 37 New Eng L Rev 1231, 1266-1267  [same]), respondent argues in this motion for summary judgment under CPLR 3212 that VAWA 2005 forbids petitioner to terminate her federal-government-assisted Section 8 tenancy.
Respondent's motion is granted.
Both petitioner and respondent agree that a violent incident occurred at 420 East 102n Street, the subject premises, and that the New York Police Department and Emergency Medical Services responded to it. Both petitioner and respondent also agree that Capers told a security guard that he was stabbed. Respondent admits that Capers told the police that she stabbed him but denies that she stabbed anyone on the date in question and further claims that she was a victim of domestic violence, not the aggressor, as petitioner claims.
Respondent asserts that as a victim of domestic violence, she deserves VAWA's protection. According to VAWA 2005, 42 USC § 1437 f (c) (9) (B) and (C) (i), an incident of domestic violence or criminal activity relating to domestic violence will not be construed to violate a public-housing or government-assisted lease and shall not be good cause to terminate a public-housing or government-assisted tenancy (such as a Section 8 tenancy) if the tenant is the victim or threatened victim of that domestic violence. (See American Civil Liberties Union, New Federal Law Forbids Domestic Violence Discrimination in Public Housing, Jan. 25, 2006, at http://www.aclu.org/womensrights/violence/23929res20060125.html [accessed Dec. 25, 2008] [explaining contours of VAWA 2005 as they affect eviction proceedings].) VAWA's goal is to prevent a landlord from penalizing a tenant for being a victim of domestic violence. (See generally Kristen M. Ross, Note, Eviction, Discrimination, and Domestic Violence: Unfair Housing Practices Against Domestic Violence Survivors, 18 Hastings Women's LJ 249, 262-264 (2007); Elizabeth M. Whitehorn, Comment, Unlawful Evictions of Female Victims of Domestic Violence: Extending Title VII's Sex Stereotyping Theories to the Fair Housing Act, 101 Nw U L Rev 1419, 1423 (2007). Respondent argues that because petitioner's allegations of nuisance are based solely on acts of domestic violence committed against her, VAWA 2005 prevents her tenancy from being terminated.
VAWA 2005, 42 USC § 1437 f (c) (9) (B), provides that
"An 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 shall not be good cause for terminating the assistance, tenancy, or occupancy rights of the victim of such violence."
VAWA 2005, 42 USC § 1437f (c) (9) (C) (i), also provides that
"Criminal activity directly relating to domestic violence . . . engaged in by a . . . guest . . . shall not be cause for termination of assistance, tenancy, or occupancy rights if the tenant . . . is the victim or threatened victim of that domestic violence . . . ."
The movant on a motion for summary judgment bears the burden of presenting evidentiary proof in admissible form to establish a prima facie showing an entitlement to a judgment as a matter of law. (E.g. GTF Mktg, Inc. v Colonial Aluminum Sales, Inc.,66 NY2d 965, 967  ["A [party] moving for summary judgment has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit "].) Summary judgment should be granted in the movant's favor only when a defense or cause of action is sufficiently established to warrant the court to direct judgment. (CPLR 3212 [b].)
To defeat a motion for summary judgment, the opposing party must "show facts sufficient to require a trial of an issue of fact." (Zuckerman v City of NY,49 NY2d 557, 562; CPLR 3212 [b].) The rule allows flexibility for the party opposing the motion. The opposing party may present evidentiary proof that falls short of the strict requirement to tender evidence in admissible form. An opposing party that does not produce evidentiary proof in admissible form sufficient to require a trial on material questions of fact must offer an acceptable excuse for its failure to meet the requirements of tender in admissible form; mere conclusions, expressions of hope, or unsubstantiated allegations or assertions are insufficient. (Zuckerman,49 NY2d at 562; Johnson v Phillips, 261 AD2d 269, 270 [1st Dept 1999]; see also Shaw v Looking Glass Assocs., LP, 8 AD3d 100, 103 [1st Dept 2004] ["Conclusory assertions tailored to meet statutory requirements . . . are insufficient to rebut defendants' prima facie showing."].)
As the movant for summary judgment, respondent asks this court to consider the entire history between her and Capers as proof that she is a domestic-violence victim. She submits evidence of complaint reports she filed with the New York Police Department in November 2006, January 2007, and February 2007, along with an order of protection she obtained against Capers in March 2007 from the New York City Criminal Court. Respondent also submits evidence that the New York District Attorney's Office declined to prosecute her for allegedly stabbing Capers in April 2008. Respondent submits her evidence to raise an inference that Capers was the aggressor in April 2008 and that, as the ...