108 F.R.D. 46 (E.D.N.Y. 1985), 82 Civ. 2892, Koster v. Perales

Docket Nº82 Civ. 2892.
Citation108 F.R.D. 46
Opinion JudgeGLASSER, District Judge:
Party NameFlorence KOSTER, John Koster, Donna Koster, John Koster, Jr., Helen Koster, Janet Koster, Edward Koster, Deborah Dean, James Bassett, Lashawnda Bassett, Cory Bassett, Jamie Dean and Jasmine Dean, on their own behalves and on behalf of all others similarly situated, Plaintiffs, v. Cesar A. PERALES, as Commissioner of the New York State Department of
AttorneyLeonard S. Clark, Vicki Lens, Hempstead, N.Y., Robert M. Hayes, Coalition for the Homeless, New York City, for plaintiffs. Asst. Atty. Gen. Howard Zwickel, Office of Atty. Gen. of State of N.Y., New York City, Edward McCabe, Bruce J. Adams, County Atty., Nassau County, Mineola, N.Y., for defendants.
Case DateSeptember 12, 1985
CourtUnited States District Courts, 2nd Circuit, Eastern District of New York

Page 46

108 F.R.D. 46 (E.D.N.Y. 1985)

Florence KOSTER, John Koster, Donna Koster, John Koster, Jr., Helen Koster, Janet Koster, Edward Koster, Deborah Dean, James Bassett, Lashawnda Bassett, Cory Bassett, Jamie Dean and Jasmine Dean, on their own behalves and on behalf of all others similarly situated, Plaintiffs,

v.

Cesar A. PERALES, as Commissioner of the New York State Department of Social Services, Francis T. Purcell, as Executive of the County of Nassau, and Joseph A. D'Elia, as Commissioner of the Nassau County Department of Social Services, Defendants.

No. 82 Civ. 2892.

United States District Court, E.D. New York.

September 12, 1985

Needy families with children residing in New York County who were either denied emergency shelter or provided substandard shelter sought certification for class action against state and county to enjoin practices and policies regarding provision of shelter. The District Court, Glasser, J., held that families met prerequisites of numerosity, typicality, commonality, adequate representation of class interests and necessity required for class certification.

Motion for class certification granted.

Page 47

Leonard S. Clark, Vicki Lens, Hempstead, N.Y., Robert M. Hayes, Coalition for the Homeless, New York City, for plaintiffs.

Asst. Atty. Gen. Howard Zwickel, Office of Atty. Gen. of State of N.Y., New York City, Edward McCabe, Bruce J. Adams, County Atty., Nassau County, Mineola, N.Y., for defendants.

MEMORANDUM AND ORDER

GLASSER, District Judge:

This is an action brought pursuant to 42 U.S.C. § 1983 in which plaintiffs, needy families with children who reside in Nassau County, allege that defendants have either unlawfully denied them emergency shelter or have given them only substandard shelter in violation of federal and state law. Plaintiffs seek declaratory and injunctive relief, as well as damages, costs and attorneys' fees. Familiarity with this Court's earlier denial of a motion to dismiss made by defendants D'Elia and Purcell (" the county defendants" ) is presumed. See Koster v. Webb, 598 F.Supp. 1134 (E.D.N.Y.1983).

Plaintiffs now seek certification of a class defined as follows: " all indigent families with children, eligible for emergency assistance, who live in Nassau County and who are or will be in need of emergency shelter." More specifically, plaintiffs seek certification of the following two subclasses:

1) Needy families with children in Nassau County who are eligible for and in need of emergency shelter for whom the defendants refuse to provide any shelter; and

2) Needy families with children in Nassau County who are eligible for and in need of emergency shelter for whom defendants provide only shelter which is a danger to the families' health and safety.

Plaintiffs propose the Koster family as representative of the first subclass and the Dean family as representative of the second subclass.1 In addition, at oral argument the Court requested that the parties brief the issue of whether the Coalition for the Homeless would have standing to intervene in this action.

For the reasons set forth herein, plaintiffs' motion for certification of the above described subclasses is granted.

Factual Background

The class action allegations with respect to the Koster family are detailed in ¶ ¶ 30-43 of the Amended Complaint, and those that describe the Deans' claim are set forth in ¶ ¶ 44-55. Briefly, it is sufficient to

Page 48

note that the Kosters, a family receiving public assistance, allegedly became homeless on September 2, 1982, when their landlord evicted them in order to use the premises for members of his family. Plaintiffs allege that except for a few days in early September 1982, defendants refused to provide them with any emergency shelter. The Koster plaintiffs allege that they intermittently obtained shelter by splitting up family members and staying with relatives and by receiving limited funds from various social service agencies to pay for shelter in a motel.

The Dean family, also receiving public assistance, allegedly became homeless on July 2, 1984, when the woman who had sublet rooms to them informed them that she could no longer do so because her lease did not allow it. Plaintiffs allege that when the six members of the Dean family applied to defendants for emergency shelter, they were referred to space in the house of a friend. That housing consisted of four rooms, a kitchen and bathroom, and after the youngest member of the Dean family was born, it housed eleven people. Plaintiffs further allege that several of the Dean children spent a few nights with other families to relieve overcrowding. However, the Deans were allegedly unable to secure less crowded shelter from defendants.

To qualify for class certification under Rule 23 of the Federal Rules of Civil Procedure, the plaintiff must (1) meet the prerequisites contained in Rule 23(a) of numerosity, typicality, commonality, and adequate representation of the plaintiff class' interests by the proposed representatives and their counsel; (2) meet one of the additional requirements of Rule 23(b); and (3) satisfy the Second Circuit's additional requirement of a showing of " necessity." See Davis v. Smith, 607 F.2d 535, 540 (2d Cir.1978); Galvan v. Levine, 490 F.2d 1255, 1261 (2d Cir.1973), cert. denied, 417 U.S. 936, 94 S.Ct. 2652, 41 L.Ed.2d 240 (1974). The parties do not dispute that plaintiffs' counsel is competent to represent the plaintiff class. The defendants, however, do contend that plaintiffs fail to satisfy the other requirements of Rule 23; specifically, the county defendants urge that plaintiffs do not meet the numerosity requirement and cannot adequately represent the class, while the state defendant, NYSDSS, denies the existence of common questions of law and fact and urges that plaintiffs' claims are not typical of those of the class. In addition, both the county and state defendants argue that plaintiffs have not met the requirements of Rule 23(b). I shall examine the various aspects of plaintiffs' motion seriatim.

Discussion

1. Numerosity

Rule 23(a)(1) states that a class action may not be maintained unless " the class is so numerous that joinder of all members is impracticable." Plaintiffs' allegations of numerosity are based upon the results of surveys of social services organizations in Nassau County conducted by plaintiffs' counsel, Nassau-Suffolk Legal Services (" NSLS" ). Briefly, the NSLS survey attempted to examine the contact between 130 agencies and the homeless for the period from January 1982 to February 1983.2 Thirty organizations responded, indicating contact with some 1168 homeless families plus additional individuals.3 With respect to the numerosity requirement, plaintiffs also rely upon a statement made by defendant D'Elia during a 1983 hearing concerning the homeless, where he stated that during 1982, defendant NCDSS made 600 referrals to emergency shelter for temporary homeless situations. Plaintiffs further

Page 49

allege that of the approximately sixty homeless families who came to NSLS alone since June 1982 who were allegedly denied emergency shelter or given substandard shelter, some thirty would fall into each subclass.4

Challenging the allegation that plaintiffs have satisfied the numerosity requirement, the county defendants urge that the purported class has not been sufficiently defined and that, therefore, numerosity cannot be determined. These defendants suggest that because of their particular circumstances, the Kosters can only represent a class consisting of:

Needy homeless families with children in Nassau County who are already receiving public assistance and not required to file an application for emergency assistance, and receive emergency shelter grants, but refused to accept emergency shelter in " Black" communities.

County defendants' Memorandum at 11. These defendants urge that such a class or subclass would be small, and also question why plaintiffs have not joined as plaintiffs the sixty homeless families allegedly interviewed by NSLS. The county defendants also state, however, that they handled some 1777 homeless situations in 1983.

The numerosity requirement of Rule 23(a)(1) mandates that the number of members in the proposed class be so numerous as to render joinder impracticable. This does not mean that joinder must be impossible; rather, " the court must find that the difficulty or inconvenience of joining all members makes class litigation desirable." Northwestern National Bank of Minneapolis v. Fox & Co., 102 F.R.D. 507, 511 (S.D.N.Y.1984). Furthermore, when considering whether to certify a class, the court should take the allegations of the merits of the case, as set forth in the complaint, to be true. Eisen v. Carlisle & Jacquelin, 417...

To continue reading

Request your trial
13 practice notes
  • 193 F.R.D. 175 (S.D.N.Y. 2000), 99 CIV 11693 WHP, Hirschfeld v. Stone
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • May 9, 2000
    ...[a]n additional reason for granting the motion for certification lies in avoiding problems of mootness" ); Koster v. Perales, 108 F.R.D. 46, 54 (E.D.N.Y.1985) (class certification is necessary when " absent certification, there is a substantial danger of mootness" ). Accordin......
  • 927 F.Supp. 622 (S.D.N.Y. 1995), 94 Civ. 4415, Morel v. Giuliani
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • January 4, 1995
    ...to indigent plaintiffs. See Jane B. v. New York City Dept. of Social Services, 117 F.R.D. 64, 72 (S.D.N.Y.1987); Koster v. Perales, 108 F.R.D. 46, 54 (E.D.N.Y.1985); Bizjak v. Blum, 490 F.Supp. 1297, 1301 (N.D.N.Y.1980). Moreover, it ignores the many cases allowing class actions to seek inj......
  • 125 F.R.D. 595 (S.D.N.Y. 1989), 88 Civ. 0334 (JMW), Ventura v. New York City Health and Hospitals Corp.
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • January 11, 1989
    ...Corporation v. Litton Industries, Inc., 293 F.Supp. 164, 170 (S.D.N.Y.1968) (certifying class of 35-70 individuals); Koster v. Perales, 108 F.R.D. 46, 49 (E.D.N.Y.1985) (certifying class of homeless people); Sharon Steel Corp. v. Chase Manhattan Bank, N.A., 88 F.R.D. 38, 44 (S.D.N.Y.1980) (......
  • 128 F.R.D. 39 (S.D.N.Y. 1989), 88 Civ. 8615 (PKL), Cutler v. Perales
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • October 16, 1989
    ...in the single action to all similarly situated persons. Follette v. Vitanza, 658 F.Supp. 492, 507 (N.D.N.Y.1987); Koster v. Perales, 108 F.R.D. 46, 54 (E.D.N.Y.1985); Wilder v. Bernstein, 499 F.Supp. 980, 994 (S.D.N.Y.1980); Laurido v. Simon, 489 F.Supp. 1169, 1173 (S.D.N.Y.1980); Montes v.......
  • Request a trial to view additional results
13 cases
  • 193 F.R.D. 175 (S.D.N.Y. 2000), 99 CIV 11693 WHP, Hirschfeld v. Stone
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • May 9, 2000
    ...[a]n additional reason for granting the motion for certification lies in avoiding problems of mootness" ); Koster v. Perales, 108 F.R.D. 46, 54 (E.D.N.Y.1985) (class certification is necessary when " absent certification, there is a substantial danger of mootness" ). Accordin......
  • 927 F.Supp. 622 (S.D.N.Y. 1995), 94 Civ. 4415, Morel v. Giuliani
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • January 4, 1995
    ...to indigent plaintiffs. See Jane B. v. New York City Dept. of Social Services, 117 F.R.D. 64, 72 (S.D.N.Y.1987); Koster v. Perales, 108 F.R.D. 46, 54 (E.D.N.Y.1985); Bizjak v. Blum, 490 F.Supp. 1297, 1301 (N.D.N.Y.1980). Moreover, it ignores the many cases allowing class actions to seek inj......
  • 125 F.R.D. 595 (S.D.N.Y. 1989), 88 Civ. 0334 (JMW), Ventura v. New York City Health and Hospitals Corp.
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • January 11, 1989
    ...Corporation v. Litton Industries, Inc., 293 F.Supp. 164, 170 (S.D.N.Y.1968) (certifying class of 35-70 individuals); Koster v. Perales, 108 F.R.D. 46, 49 (E.D.N.Y.1985) (certifying class of homeless people); Sharon Steel Corp. v. Chase Manhattan Bank, N.A., 88 F.R.D. 38, 44 (S.D.N.Y.1980) (......
  • 128 F.R.D. 39 (S.D.N.Y. 1989), 88 Civ. 8615 (PKL), Cutler v. Perales
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • October 16, 1989
    ...in the single action to all similarly situated persons. Follette v. Vitanza, 658 F.Supp. 492, 507 (N.D.N.Y.1987); Koster v. Perales, 108 F.R.D. 46, 54 (E.D.N.Y.1985); Wilder v. Bernstein, 499 F.Supp. 980, 994 (S.D.N.Y.1980); Laurido v. Simon, 489 F.Supp. 1169, 1173 (S.D.N.Y.1980); Montes v.......
  • Request a trial to view additional results