This week’s case brings us to Cohoes, New York, located in the northeast corner of Albany County. It is about a 2 ½-hour drive due north from Manhattan and 2 ½-drive due east from Syracuse. The view of Cohoes Falls is beautiful and there are plenty of activities in town to make it worth a trip to see if you are ever up near the state capital. The name Cohoes comes from a Mohawk term meaning “Place of the Falling Canoe.”
The case we are studying today is about what we, as a community, consider “shocking to fairness.”
ENTER: Jane Doe, a tenant in a public housing complex; Lisa Simmons, and Emily Macie, also tenants in the same complex.
Two neighbors in a public housing complex get into a fight. Because of that, one of the neighbors gets served with eviction papers from the landlord saying that fighting is illegal and, therefore, since the lease states you can get kicked out if you engage in illegal activity, you’re out of here! Tenant says, “Not fair! I’m staying.” This is the eviction trial.
It was a warm afternoon in late fall. The children at the Cohoes Manor Sites were playing basketball. Among the participants were Lisa Simmons’s 12-year-old son and Jane Doe’s six-year-old daughter. Jane and Emily are sitting on Jane’s porch watching the game. Seated in a chair close by is Lisa, who is also watching the kids play.
TESTIMONY OF LISA SIMMONS
Q: Where were you located just before the incident took place?
Q: And what did you do?
A: I walked a short distance from where I was seated over to the children. I gave my kid a drink and complimented him on the fantastic shot he had made. It was noisy so I had to raise my voice at him to be heard.
Q: And did something happen after that?
A: Yeah. For no reason Jane got upset and started yelling just because I was giving my kid a drink.
Q: Did you respond?
A: Yes, calmly. I said that there was no reason for her to be upset—it was only a drink on a hot day. But Jane refused to let it go.
Q: What do you mean?
A: Instead of just getting past it, Jane called me “fat” and started cursing at me.
Q: And what was your reaction?
A: I just turned and walked away. And then I heard someone coming up from behind me and I got knocked to the ground. It was Jane. She got on top of me and started hitting my face and neck.
CROSS-EXAMINATION OF LISA
Q: You stated that your reaction to what Jane said was to turn and walk away. But that’s not the complete reaction, is it?
A: I don’t understand the question.
Q: Well you did in fact say something to Jane, in addition to turning and walking away, right?
A: Well, yeah; I said something like “I rather be fat than a ho.” But that remark was not directed to anyone in particular and by no means towards Jane.
Q: Even though Jane had just called you fat?
A: That is correct.
Q: And that is your final answer?
TESTIMONY OF JANE DOE
Q: Why did you say something to Lisa when she was giving her child a drink?
A: I heard Lisa call my daughter a scumbag. I went into “mamma bear” mode and began yelling and swearing at her. And then Lisa looked straight at me and called me a whore. That’s when a switch flipped and I just went after her.
Q: What caused the “switch flipping?”
A: When I was 14, I was raped. The rapist kept calling me a whore throughout the entire ordeal. The rape had a devastating effect on me; it produced profound anger issues. At the time when Lisa called me that, I was being treated by a psychiatrist for intermittent explosive disorder. Just before the incident, I had changed medication and before it became effective, I was susceptible to angry outbursts.
Q: How do you feel about what happened with Lisa?
A: I am deeply remorseful for my actions. I was wrong to punch Lisa and I apologized to her. But I can’t get kicked out of my home. Please, Your Honor.
TESTIMONY OF EMILY MACIE
Q: Emily, what did you observe on the day in question?
A: I was on Jane’s porch with her watching the children play basketball. I remember that the children were horsing around as usual—they were being crazy and rowdy like normal kids. At some point, Lisa rose from her chair and started yelling at the children in an altogether inappropriate manner. I heard Lisa berating the kids by demanding that they stop their “bull sh*t” and calling certain children “scumbags,” including Jane’s six-year-old daughter. At that point Jane engaged Lisa in a shouting match. The trash talk escalated—Jane called Lisa fat, Lisa called Jane a whore. Then Jane bolted from the porch and made a beeline for Lisa who was at the gate to the basketball court. Jane connected with two lefts to Lisa’s head before I wrestled Jane away. Lisa never swung back at Jane.
Q: What happened after that?
A: After being hit, Lisa retreated to her chair, sat down and then flopped to the ground. Then the cops came. They took Jane.
Q: When was the next time you saw Lisa?
A: The next day. She had two bruises on her face—one on the lower right side of her jaw and one on her right ear. She got an Order of Protection against Jane from the court.
LANDLORD: Jane breached her lease covenant that she would not engage in criminal activity, which threatened the health, safety and peaceful enjoyment of another tenant. Therefore, Jane must be evicted.
JANE’S LAWYER: Jane does not contest the gravity of her actions. However, eviction is so disproportionate to her offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness. A warning is appropriate in this case with the promise to continue treatment.
If the lease was the sole source of the rights between the parties, the landlord could lawfully terminate the lease. But the lease in this case is not the sole authority because it is public housing. With public housing, under federal law, a landlord may terminate the tenancy only for serious or repeated violation of material terms of the lease.
Jane exercised self-restraint until she was triggered by a particular word that invoked the horrible nightmare of her rape and this trigger occurred at a moment that she was transitioning medication which made her vulnerable to rage. In view of that and Jane’s continued medical treatment, eviction is a grossly disproportional consequence.
See you next week.
Here is the case: http://www.courts.state.ny.us/reporter/3dseries/2018/2018_28056.htm