Lamboy v. Gross

Decision Date26 August 1985
PartiesIn the Matter of the Application of Maria LAMBOY and Oscar Serrano, on behalf of themselves and their children, and on behalf of all others similarly situated, Petitioners and Wilma Acevedo, on behalf of herself and her children, and on behalf of all others similarly situated, Proposed Petitioner-Intervenor, For a judgment pursuant to Article 78 of the C.P.L.R. v. George GROSS, as Commissioner of the Human Resources Administration of the City of New York and the New York City Department of Social Services, Cesar Perales, as Commissioner of the New York State Department of Social Services and Martin Burdick, in his capacity as Deputy Director for Income Maintenance Operations for the New York City Department of Social Services, Respondents.
CourtNew York Supreme Court

Legal Aid Society, Morton Dicker, New York City, of counsel by Shawn P. Leary, Steven Banks, Alan Rosner, New York City, for petitioners.

F.A.O. Schwarz, Corp. Counsel by Antonia Levine, New York City, for respondents Gross and Burdick.

Robert Abrams, Atty. Gen., by Roy Moskowitz, Howard Zwickel, New York City, for respondent Perales.

HELEN E. FREEDMAN, Judge:

Petitioners Lamboy and Serrano move by order to show cause pursuant to Articles 9, 30 and 78 of the CPLR seeking inter alia 1) certification of this action as a class action; 2) declaratory judgment declaring respondents City and State have failed to insure provision of emergency housing to meet the needs of petitioners (and other similarly situated homeless families with children) as required by 83 ADM-47; 3) a preliminary injunction enjoining respondents from denying or permitting denial of emergency housing to meet the needs of petitioners' family (and other similarly situated homeless families with children in New York City) for reasons other than those permitted by 83 ADM-47; 4) costs and legal fees.

Petitioner Wilma Acevedo seeks similar relief and permission to intervene in this action pursuant to CPLR § 1013.

Petitioners have withdrawn those aspects of their petition which seek to declare that the failure of the City and State to provide emergency housing violates the United

States Constitution, (42 U.S.C. § 602[a][1], [3], 42 U.S.C. § 1983, 45 CFR §§ 205.100, 205.120 and 206.10) and the New York State Constitution (Article 1 Section 11) and confine their challenge to alleged violation of 83 ADM-47, the administrative directive issued by the Commissioner of the New York State Department of Social Services governing emergency placement of homeless families in New York City.

Background

The New York City Human Resources Administration ("HRA") operates Income Maintenance Centers ("IMC") located throughout the City. During regular working hours, homeless families may be placed in emergency shelters through their local IMC. After 5 P.M. or on weekends and holidays, families not otherwise placed are sent to an Emergency Assistance Unit ("EAU") which in turn assumes responsibility for referral to emergency shelters. There is one EAU in each borough except Staten Island.

Petitioners Marie Lamboy and Oscar Serrano having been intermittently homeless since 1980, when they were forced out of their apartment by a vacate order, and having spent time with friends and relatives as well as in hotels and other emergency shelter facilities, presented themselves for placement on May 9, 1985. They completed an application seeking shelter for a family of five but the City was unable to find a facility accommodating all five members of the family. 1 Consequently, together with their three children ages 2, 4, and 6, Ms. Lamboy and Mr. Serrano spent three nights at an EAU located at 241 Church Street, New York City before Hon. Elliot Wilk on May 12, 1985 signed an order to show cause in which he granted class-wide relief enjoining denial of placement. That order was vacated on May 13, 1985 by the Hon. Joseph Sullivan on condition that the Lamboy-Serrano family be placed in an emergency facility. After some difficulty, all five members of the family were placed in the Lavenburg Center on May 22, 1985.

The order to show cause for intervening plaintiff Acevedo was signed by Hon. Jawn Sandifer on May 21, 1985, but no stay or injunction was contained therein. Mrs. Acevedo and her six year old epileptic son had been denied emergency housing since May 20, 1985 and had spent a night in the Bronx EAU. As had the Lamboy-Serrano family, they had slept on plastic chairs and formica tables under fluorescent lights.

The issue before me is simply whether the failure to provide emergency shelter for the Lamboy-Serrano and Acevedo families, as well as those similarly situated, constitutes a violation of an administrative directive issued by the state (83 ADM-47, issued on September 20, 1983 effective October 1, 1983). The relevant provision states as follows:

a-Local districts must have procedures in place to ensure that homeless families or persons in imminent danger of becoming homeless can apply for emergency housing whenever such emergency housing is needed.

b-Emergency housing must either be provided immediately if a homeless person is determined eligible or written notice must be given that no assistance will be provided where a homeless person is determined ineligible. A person who is determined ineligible shall be advised of the right to an expedited hearing.

Respondents Gross and Burdick oppose the motion for preliminary injunction and class certification and cross-move to dismiss the petition on the ground that the Matter of McCain v. Koch, 127 Misc.2d 23, 484 NYS.2d 985 (Sup.Ct. New York County 1984, Greenfield, J.) (hereinafter "McCain"), which raises the same issues, is now on appeal to the Appellate Division. They also state that Justice Greenfield in rejecting applications to intervene in McCain and directing individual Article 78 proceedings did not mean that Article 78 The State joins the City in opposing the motion for a preliminary injunction on the ground that the identical issues are being litigated in McCain. The State further claims that preliminary injunctive relief should be denied as against it because it is the City respondents who are the direct providers of services and assistance to the eligible needy.

                proceedings should be used to relitigate the issues in McCain.   The City also moves on the ground that the claim as to Ms. Lamboy is moot and that class certification is unnecessa  because the interests of similarly situated families are fully protected in McCain, through the doctrine of stare decisis
                

Inasmuch as both respondents invoke McCain as a basis for denying the preliminary injunction as well as class certification, a brief review of McCain is warranted.

In March of 1983, thirteen or fourteen needy families with children, represented by the Legal Aid Society, commenced McCain, supra (Index No. 41 023/83 [Sup.Ct.NY County] ). The plaintiff there challenged the policies and procedures pursuant to which the City defendants furnished shelter and services to homeless families in New York City. In addition to class certification, petitioners in McCain sought injunctive relief on a variety of issues. Those issues included providing emergency housing to families with children, locating and making available units and/or more suitable units, devising a better system of informing homeless families of services available to them, and improving methods for determining eligibility of homeless families for public assistance benefits. Numerous other persons attempted to intervene in the McCain action. Relief sought was based upon the Social Security Act (42 U.S.C. §§ 601 et seq.), Title 45 of the Code of Federal Regulations, § 223.120, the Fourteenth Amendment to the United States Constitution, Articles I and XVII of the New York State Constitution, § 350-j of the New York Social Services Law and Title 18 of the New York Code of Rules and Regulations.

On June 20, 1983, Justice Greenfield issued an interim order to the City's Departments of Social Services and Housing Preservation and Development providing that when facts are disclosed which indicate a need for emergency housing assistance, eligible families must be provided with notice of their rights to emergency housing. If such families are determined ineligible, adequate personal notice with reasons must be given and they must be notified of a right to expedited review. That order also required that when a family is not denied emergency housing the housing into which the family is placed must meet specified health and safety standards and placement must continue until adequate notice for termination is given. Finally, the order provided that to the extent practicable, DSS should continue food stamps or medicaid.

Thereafter, 83 ADM-47 was issued codifying the interim order.

On June 22, 1984, Justice Greenfield issued his final order in McCain in which he denied class certification on the ground that numerous questions of fact and law were not common to all members of the class. He also implied that class certification was "inappropriate particularly where government operations were concerned." The interim order was converted to a preliminary injunction. While acknowledging that the State Constitution imposes an affirmative duty to aid the needy, he rejected plaintiffs' argument that the State Constitution and State statutes explicitly required the provision of shelter to all homeless families, noting that "neither the Constitution nor the Social Services Law § 131, 131a, 350 provide that emergency shelter shall be given to the needy in explicit terms." Justice Greenfield did not specifically deal with 83 ADM-47 except to indicate that where the defendants have undertaken to provide emergency shelter instead of providing direct cash grants, the issues of minimal standards and procedural rights could be scrutinized under the equity powers of...

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  • Weiser v. Koch
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