Cleary Gottlieb And The Bronx Defenders Win Appeal Preventing District Attorney From Unsealing Criminal Records To Evict Tenants

On October 17, 2017 the Appellate Division, First Department unanimously ruled in People v. F.B. that the District Attorney (“DA”) cannot unseal criminal records that had been sealed under New York’s statutory sealing laws (the “Sealing Statutes”) to use as evidence in eviction proceedings commenced under New York’s so-called “Bawdy House Laws.”

The Bawdy House Laws permit landlords to evict tenants when premises are used for illegal business. In practice, the Bronx DA routinely forces landlords to start eviction proceedings following a drug-related arrest of any person (including a non-tenant) in a rental apartment—even where the criminal charges are dropped or pled down to a non-criminal violation. In People v. F.B., F.B. had been arrested on drug-related charges in his mother’s apartment and the records of his arrest and prosecution were sealed after he pled guilty to a non-criminal violation. Notwithstanding that F.B. was not convicted of a crime, the Bronx DA demanded that the landlord bring eviction proceedings against F.B.’s mother on the basis of F.B.’s arrest. After the housing court excluded the sealed records, the Bronx DA obtained an order from the Supreme Court, Criminal Term unsealing F.B.’s records, relying on an exception to the Sealing Statutes that allows law enforcement agencies to unseal records for law enforcement purposes. F.B., represented by Cleary and The Bronx Defenders, appealed the unsealing order.

The Appellate Division, First Department, in an issue of first impression before the Court, held that the DA’s office is not a “law enforcement agency” under the Sealing Statutes when it seeks to unseal records for civil eviction proceedings.  The Court reiterated that the Sealing Statutes are “designed to lessen the adverse consequences of unsuccessful criminal prosecutions” and described the Bronx DA’s practice as “counter to the Legislature’s intent in drafting the sealing statutes and their narrow exceptions.”