Goldberger and Kremer, (Brian Kremer, Esq. of counsel)
Albany, for Petitioner-Landlord.
Aid Society of Northeastern New York (Debra Ann Collura, Esq.
of counsel), for Respondent-Tenant.
Housing Authority ("CHA") brought a holdover
proceeding against Jane Doe ("Doe").  The Court
held a trial and the testimony and evidence established the
On a warm late fall afternoon, the children at the Cohoes
Manor Sites were playing basketball. Among the participants
were Lisa Simmons' 12-year-old son and Jane Doe's
6-year-old daughter. Simmons was camped outside her apartment
observing the game. She testified that her son called her
over for a drink. She walked the short distance from where
she was seated to the children.
point, Doe and Simmons became involved. Simmons claims that
Doe inexplicably became incensed that Simmons was providing
her own child with a drink. Simmons, according to her,
responded calmly that there was no reason to be upset - it
was only a drink on a hot day. Simmons says that Doe refused
to let it go. Instead, Doe responded to Simmons'
innocuous comments by calling her fat and hurling curses at
her. Upon cross-examination, Simmons expanded on this part of
her story. She amended her direct testimony to include that
she, in addition to giving her son a drink, also complimented
a child on the fantastic shot he had made - and because of
the clamor on the playground, she, of course, had to raise
her voice at the child to be heard.
says that the next thing that she did was to turn and walk
away. At this point, she admits saying that "I rather be
fat than a ho, " but she assured the court that this
remark was directed at no one in particular and by no means
towards Doe who had just previously called her fat. After
making this comment, Simmons heard someone running at her.
She did not pivot to see what was happening, but rather she
kept her back to the fast-approaching person. According to
Simmons, Doe knocked her to the ground, mounted her and then
rained multiple blows upon her face and neck.
for the part of her testimony where Simmons says that she
raised her voice on the basketball court and was later hit by
Doe, the court finds Simmons's testimony incredible and
unreliable. Rather, the court believes the most honest and
accurate version of events comes from Emily Macie. Macie also
resides at Cohoes Manor Sites with Doe and Simmons. On the
day in question, Macie was on Doe's porch with Doe
watching the children play basketball. She remembers that the
children were horsing around as usual - "they were being
crazy and rowdy like normal kids." At some point,
Simmons rose from her chair and started yelling at the
children in an altogether inappropriate manner. Macie heard
Simmons berating the youths by demanding that they stop their
"bull sh**" and calling certain children
"scumbags, " including Doe's
juncture, Doe intervened and engaged Simmons in a verbal
altercation. The unpleasantries escalated - Doe called
Simmons fat, Simmons called Doe a whore - no more words were
exchanged after that. Doe bolted from her porch and made a
beeline for Simmons who was at the gate to the basketball
court. Macie pursued. Doe connected with two lefts to
Simmons' head before Macie wrestled Doe away. Simmons
never swung back at Doe. After being hit, Simmons retreated
to her chair, sat down and then flopped to the ground.
Cohoes Police were quickly summoned to the scene. Doe was
charged with harassment in violation of Penal Law §
240.26(1). When the police asked Simmons if she needed
medical attention, Simmons told the officer that she was
fine. The next day, two bruises had manifested on
Simmons' face - one on the lower right side of her jaw
and one on her right ear.
informed of the incident which it considered a breach of the
lease. In particular, Doe violated the lease covenant that
she would not engage in criminal activity which threatened
the health, safety and peaceful enjoyment of another tenant.
Doe wrote a letter to CHA explaining that she was provoked,
that she had special circumstances that explained her violent
reaction to the provocation and that she was remorseful. CHA
was unpersuaded that Doe should receive a second chance, it
remained steadfast in its demand that Doe surrender
possession of the apartment. When Doe refused to vacate her
apartment, CHA commenced this holdover proceeding.
some additional elaboration and collaboration, Doe's
letter mirrored her trial testimony. While the details of
Doe's explanation are quite sensitive (and personally
painful), nevertheless, they need an exposition to comprehend
fully Doe's defense.
Doe testified that when Simmons called her daughter a
scumbag, she went into "mamma bear" mode and began
yelling, swearing and insulting Simmons. But the moment that
Simmons looked straight at her and called her a whore,
"a switch flipped" and she launched a physical
attack upon Simmons. Doe explained there was a compelling
reason for the switch flipping.
testified that at age fourteen she was raped and that her
rapist kept calling her a whore throughout the entire ordeal.
The rape had a devastating effect; it produced profound anger
issues. Doe, at the time of this incident, was being treated
by a psychiatrist for intermittent explosive disorder. Just
before the incident, she had changed medication and before it
became effective, she was susceptible to angry outbursts.
Finally, Doe ...