McCain v. Koch

• Decision Date: 22 June 1984
• Citation: 484 N.Y.S.2d 985,127 Misc.2d 23
• Parties: Yvonne McCAIN, Emily Moses, Steven Moses, Yvonne Perez, Barbara Dancy, Lillie Sullivan, Belinda Randolph, Barbara Downs, Jeri Evans, Mary Brown, Patricia Rodak, William Sanders, Carolyn Sanders, Victoria Smith, Carolyn King, on behalf of themselves and their children or other dependent minor relatives in their care and on behalf of all others similarly situated, Plaintiffs, v. Edward I. KOCH, as Mayor of the City of New York; the City of New York: Cesar A. Perales, as Commissioner of The New York State Department of Social Services; James Krauskopf, as Commissioner of The Human Resources Administration of The City of New York and of The New York City Department of Social Services; Martin Burdick, as Deputy Director of Income Maintenance Operations of the New York City Department of Social Services; Robert Jorgen, as Director of Crisis Intervention Services of the New York City Human Resources Administration; Anthony Gleidman, as Commissioner of The New York City Department of Housing Preservation and Development; Wilfredo Vargas, as Assistant Commissioner of The New York City Department of Housing Preservation and Development, Division of Relocation Operations, Defendants.
• Court: New York Supreme Court

Page 985

484 N.Y.S.2d 985

127 Misc.2d 23

Yvonne McCAIN, Emily Moses, Steven Moses, Yvonne Perez Barbara Dancy, Lillie Sullivan, Belinda Randolph, Barbara Downs, Jeri Evans, Mary Brown, Patricia Rodak, William Sanders, Carolyn Sanders, Victoria Smith, Carolyn King, on behalf of themselves and their children or other dependent minor relatives in their care and on behalf of all others similarly situated, Plaintiffs, v. Edward I. KOCH, as Mayor of the City of New York; the City of New York: Cesar A. Perales, as Commissioner of The New York State Department of Social Services; James Krauskopf as Commissioner of The Human Resources Administration of The City of New York and of The New York City Department of Social Services; Martin Burdick, as Deputy Director of Income Maintenance Operations of the New York City Department of Social Services; Robert Jorgen, as Director of Crisis Intervention Services of the New York City Human Resources Administration; Anthony Gleidman, as Commissioner of The New York City Department of Housing Preservation and Development; Wilfredo Vargas, as Assistant Commissioner of The New York City Department of Housing Preservation and Development, Division of Relocation Operations, Defendants.

Supreme Court, Special Term New York County, Part 1.

June 22, 1984.

The Legal Aid Society (Steven Banks, Arthur Fried, Shawn Leary,John E. Kirklin, Stephen Loffredo, Foster Maer, Kathleen Masters, Ann Moynihan, Alan Rosner and Marcella Silverman, New York City, of counsel), for plaintiffs.

Frederick A.O. Schwarz, Jr., Corp. Counsel of the City of New York by Antonia Levine, Asst. Corp. Counsel, Attorney General by Lillian Cohen, Asst. Atty. Gen., New York City, for defendants.

EDWARD J. GREENFIELD, Justice:

Plaintiffs move for a preliminary injunction pursuant to CPLR § 6301 to compel the New York City defendants ("Defendants") to provide plaintiffs with safe and adequate emergency housing and assistance suitable for families with dependent children and to compel defendants to adopt detailed regulations to assist plaintiffs and other families similarly situated. Plaintiff also seeks to compel the New York State Department of Social Services ("State") to provide them with immediate fair hearings to review the denial of emergency shelter. Plaintiffs also seek class certification pursuant to CPLR § 902 and to proceed as poor persons. Other specific relief requested by plaintiffs has been disposed of by agreement of the parties or order of this court.

By an interim order, dated June 20, 1983, this court ordered that families with children in need of emergency housing or assistance be provided with notice of their rights to emergency housing and the right to an expedited or regular fair hearing in which plaintiffs may contest the agency's determination. That families granted emergency housing be placed insofar as possible, in clean facilities which meet New York City fire, health, safety and residential regulation requirements and located in light of the children's educational needs. The interim order further provided that families shall continue to be provided with emergency housing and assistance until such time as they shall have an opportunity to contest denial of emergency housing and assistance.

The substance of the interim order has since been codified under 18 NYCRR 352.3. To that extent, defendants' and State's objection to that order are moot. However, it does not dispose of the principal argument raised by Defendants.

Defendants argue that they have no obligation to provide emergency housing for the homeless. This, from the city whose Statue of Liberty welcomed immigrants to these shores, and proudly proclaimed:

"Send these, the homeless, tempest-tossed, to me."

Defendants concede that under the Aid to Families with Dependent Children Act (AFDC) 42 U.S.C. § 601 et seq., there is an obligation to assist families to locate shelter for 30 days, and beyond that Defendants allege only an obligation to provide homeless families with cash grants.

Article XVII of the New York State Constitution provides for aid to the needy and that they shall be provided for by the State or by its subdivisions. This obligation is mandatory and imposes upon the State an affirmative duty to aid the needy (Tucker v. Toia, 43 N.Y.2d 1 at 8, 400 N.Y.S.2d 728, 371 N.E.2d 449). Neither the Constitution nor the Social Services Law §§ 131, 131-a, 350 provide that emergency shelter shall be given to the needy in explicit terms.

However, once the Defendants have undertaken to...