129 Misc.2d 564, Lamboy v. Gross

Citation129 Misc.2d 564, 493 N.Y.S.2d 709
Party NameLamboy v. Gross
Case DateAugust 26, 1985

Page 564

129 Misc.2d 564

493 N.Y.S.2d 709

In the Matter of the Application of Maria LAMBOY and Oscar

Serrano, on behalf of themselves and their children, and on behalf of all others

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.

Supreme Court of New York, New York County, Part I.

August 26, 1985.

[493 N.Y.S.2d 710] 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Petitioners have withdrawn those aspects of their petition which seek to declare that the failure of the City and State to provide emergency housing violates the United [493 N.Y.S.2d 711] 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 [493 N.Y.S.2d 712] 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.

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.

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...

To continue reading

Request your trial
14 practice notes
  • 165 Misc.2d 77, Darns v. Sabol
    • United States
    • March 29, 1995
    ...The rationale is that the government will protect the rights of future claimants under the doctrine of stare decisis. Lamboy v. Gross, 129 Misc.2d 564, 493 N.Y.S.2d 709 (Sup.Ct., N.Y. County 1985), aff'd, 126 A.D.2d 265, 513 N.Y.S.2d 393 (1st Dept.1987). A judgment favoring the plaintiffs d......
  • 9 Misc.3d 1107(A), 2005-51435, McCain v. Bloomberg
    • United States
    • New York New York Supreme Court Appelate Division
    • August 16, 2005
    ...past used Administrative Directives as a basis for its orders in the homeless families litigation. (See Lamboy v. Gross, 129 Misc2d 564, 493 N.Y.S.2d 709, aff'd. 126 A.D.2d 265, 513 N.Y.S.2d 393 (1st Dept. 1987). They assert that provisions of the Social Services Law serve as the basis for ......
  • 135 Misc.2d 689, Spring-Gar Community Civic Ass'n, Inc. v. Homes for the Homeless, Inc.
    • United States
    • May 5, 1987
    ...720, motion to vacate stay denied as unnecessary, 68 N.Y.2d 713, 506 N.Y.S.2d 312, 497 N.E.2d 679; cf. Matter of Lamboy v. Gross, 129 Misc.2d 564, 493 N.Y.S.2d 709, affd. 126 A.D.2d 265, 513 N.Y.S.2d 393). The court, therefore, may not enjoin the maintenance and operation of the Saratoga In......
  • 11 Misc.3d 615, 2006-26,009, Brownley v. Doar
    • United States
    • New York New York Supreme Court Appelate Division
    • January 11, 2006
    ...and (3) a balance of the equities in their favor. (Aetna Ins. Co. v Capasso, 75 N.Y.2d 860, 862 [1990]; Matter of Lamboy v Gross, 129 Misc.2d 564 [Sup Ct, N.Y. County 1985], affd 126 A.D.2d 265 [1st Dept. 1987]; Tucker v Toia, 54 A.D.2d 322 [4th Dept. 1976].) As stated earlier, plaintiffs h......
  • Request a trial to view additional results
13 cases
  • 165 Misc.2d 77, Darns v. Sabol
    • United States
    • March 29, 1995
    ...The rationale is that the government will protect the rights of future claimants under the doctrine of stare decisis. Lamboy v. Gross, 129 Misc.2d 564, 493 N.Y.S.2d 709 (Sup.Ct., N.Y. County 1985), aff'd, 126 A.D.2d 265, 513 N.Y.S.2d 393 (1st Dept.1987). A judgment favoring the plaintiffs d......
  • 9 Misc.3d 1107(A), 2005-51435, McCain v. Bloomberg
    • United States
    • New York New York Supreme Court Appelate Division
    • August 16, 2005
    ...past used Administrative Directives as a basis for its orders in the homeless families litigation. (See Lamboy v. Gross, 129 Misc2d 564, 493 N.Y.S.2d 709, aff'd. 126 A.D.2d 265, 513 N.Y.S.2d 393 (1st Dept. 1987). They assert that provisions of the Social Services Law serve as the basis for ......
  • 135 Misc.2d 689, Spring-Gar Community Civic Ass'n, Inc. v. Homes for the Homeless, Inc.
    • United States
    • May 5, 1987
    ...720, motion to vacate stay denied as unnecessary, 68 N.Y.2d 713, 506 N.Y.S.2d 312, 497 N.E.2d 679; cf. Matter of Lamboy v. Gross, 129 Misc.2d 564, 493 N.Y.S.2d 709, affd. 126 A.D.2d 265, 513 N.Y.S.2d 393). The court, therefore, may not enjoin the maintenance and operation of the Saratoga In......
  • 11 Misc.3d 615, 2006-26,009, Brownley v. Doar
    • United States
    • New York New York Supreme Court Appelate Division
    • January 11, 2006
    ...and (3) a balance of the equities in their favor. (Aetna Ins. Co. v Capasso, 75 N.Y.2d 860, 862 [1990]; Matter of Lamboy v Gross, 129 Misc.2d 564 [Sup Ct, N.Y. County 1985], affd 126 A.D.2d 265 [1st Dept. 1987]; Tucker v Toia, 54 A.D.2d 322 [4th Dept. 1976].) As stated earlier, plaintiffs h......
  • Request a trial to view additional results
1 books & journal articles