Darns v. Sabol

• Citation: 165 Misc.2d 77,627 N.Y.S.2d 526
• Parties: Michael DARNS, Nydia Hernandez, Juanita Roberts, on behalf of themselves and all others similarly situated, Plaintiffs, v. Barbara SABOL, Commissioner of the New York City Department of Social Services, Defendant.
• Decision Date: 29 March 1995
• Court: United States State Supreme Court (New York)

Page 526

627 N.Y.S.2d 526

165 Misc.2d 77

Michael DARNS, Nydia Hernandez, Juanita Roberts, on behalf of themselves and all others similarly situated, Plaintiffs, v. Barbara SABOL, Commissioner of the New York City Department of Social Services, Defendant.

Supreme Court, New York County Part 56.

March 29, 1995.

Brooklyn Legal Services by John C. Gray, Jr., Lauren Shapiro, Brooklyn, for plaintiffs.

Corp. Counsel of the City of N.Y. by Paul A. Crotty, Corp. Counsel, Ann Marie Vroman, Asst. Corp. Counsel, New York City, for defendant.

CHARLES E. RAMOS, Justice.

The plaintiffs seek an order declaring that persons who are HIV infected are entitled to emergency assistance from the City of New York if they have no shelter or are in need of different or more appropriate shelter. On behalf of themselves and a proposed class of individuals afflicted with HIV illness or with active AIDS, the plaintiffs have applied (or will apply) to defendant, the New York City Department of Social Services, for housing assistance, consisting of rent security deposits, brokers' fees, and/or moving expenses.

Plaintiffs allege that they are entitled to be considered to be in emergency circumstances when they applied for assistance, that applications should be decided in 48 hours, and if approved, the aid should be issued by the end of the next working day.

The defendant denies that plaintiffs are in emergency circumstances because they possessed food, shelter, and clothing at the time they applied for aid. The defendant also contends that there is no statutory authority to support the plaintiffs' contention that assistance must be provided within the abbreviated time frame plaintiffs assert. Additionally, the defendant opposes the certification of the class.

Specifically, plaintiffs seek (1) an order adding the proposed plaintiff-intervenors as plaintiffs; (2) class certification; (3) a preliminary injunction requiring defendant to immediately provide the plaintiff-intervenors with the assistance they have requested; (4) a declaration that defendant's alleged practice of failing to make eligibility determinations of the applications for assistance consisting of brokers' fees, rent security deposits, and/or moving expenses within 48 hours, and if applicant is found eligible, to issue assistance by the end of the next working day, is violative of state law; and (5) an order requiring the defendant to make eligibility determinations on applications for assistance consisting of brokers' fees, moving expenses, and/or rent security deposits within 48 hours of the request for such assistance.

The New York City Human Resources Administration (HRA) has been providing specialized case management to persons with AIDS and advanced HIV illness since 1985. The plaintiffs and proposed intervenors have all received housing benefits from the defendant. Before they moved to their new apartments, they resided in welfare hotels, SROs, with relatives, or in their own apartments.

Compelling as the plight of those afflicted by HIV may be, without a statutory foundation for the claims asserted herein, the power of this court to act on behalf of the plaintiffs is limited. Its power and the power of the executive and legislative branches of government are carefully defined, as are the roles each is intended to play in a democracy.

In the 18th century, the political theorist Charles Louis de Secondat, Baron de Montesquieu sought to describe the British constitution. Although his interpretation was less than accurate it was a work of inspiration. The idealized form of democracy which Montesquieu described became the blueprint for modern democratic government, encompassing three branches: the executive, the legislative, and the judicial. In arguing for the separation of powers of each, which is the raison d'etre for the three branches, he stated:

"When the legislative and executive powers are united in the same person, or in the same body of magistrates there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner.

"Again, there is no liberty, if the power of judging be not separated from the legislative and executive powers. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator ... By separating and keeping separate ... the three great branches of government, they would act as a check upon each other and so preserve the liberties of the people." ¹

Montesquieu's interpretation of the British constitution greatly influenced the framers of both our state and federal constitutions resulting in the first intentional application of the doctrine of the separation of powers in any democracy.

The doctrine of the separation of powers which requires that issues of government policy be determined, and laws enacted, not by the courts, but by the executive and legislative branches of government is fundamental in American jurisprudence.

Alexander Hamilton wrote in the Federalist Papers (No. 78):

"It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body."

These principles underlie the relationship between the branches of New York State's government as well.

"Nowhere has the doctrine thus established been applied more steadily or forcefully than in the courts of New York. (Matter of Davies, 168 N.Y. 89, 61 N.E. 118; Matter of State Industrial Commission, supra [224 N.Y. 13, 119 N.E. 1027]. The function of the judges 'is to determine controversies between litigants' (Matter of State Industrial Commission, supra)." Cardozo, C.J. In re Richardson et al., 247 N.Y. 401, 411, 160 N.E. 655.

And, in particular, involving claims that governmental benefits are inadequate, such as the case at bar.

"It is true, of course, that the judicial power has had its proper exercise in welfare questions. The courts will strike down any arbitrary legislative classification which denies to one class of needy persons public assistance which is available to all others (Lee v. Smith, 43 N.Y.2d 453, 402 N.Y.S.2d 351, 373 N.E.2d 247). But what the courts cannot do, with a proper deference for and recognition of the doctrine of separation of powers, is to dictate the allocation of public resources and a wholesale reordering of public priorities (Jones v. Beame, 45 N.Y.2d 402, 408 N.Y.S.2d 449, 380 N.E.2d 277)." RAM v. Blum, 103 Misc.2d 237, 240, 425 N.Y.S.2d 735, 1st Dept.

"Broad policy choices, which involve the ordering of priorities and the allocation of finite resources, are matters for the executive and legislative branches of government and the place to question their wisdom lies not in the courts but elsewhere (see, Jones v. Beame, 45 N.Y.2d 402, 408 N.Y.S.2d 449, 380 N.E.2d 277; Matter of Abrams v. New York City Tr. Auth., 39 N.Y.2d 990, 387 N.Y.S.2d 235, 355 N.E.2d 289)." Jiggetts v. Grinker, 75 N.Y.2d 411, 415, 554 N.Y.S.2d 92, 553 N.E.2d 570.

"[A]id, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature may from time to time determine." ( N.Y. CONST. art. XVII, § 1).

However, this time honored policy of New York courts not sitting as a superlegislature does not render this court powerless, particularly in actions against governmental bodies. Our courts have acted to use the law, not to make public policy in such situations, but rather to enforce rights that may have been violated due to departures from established procedures that were the result of either a legislative or executive response to the political process. Guided by the doctrine of the separation of powers, this court intends to enforce such rights as may have been violated without exercising legislative powers, for which it lacks constitutional authority.

The creation of the Division of AIDS Services (DAS) was a response to the public need and will. Three successive city administrations joined by the City Council with the support of other elected and political officials have funded DAS, which has a public mandate through our democratic process. The public has expressed the will to assist seriously ill people lacking shelter not only because of the suffering they face, but also because of the threat of pneumonia, tuberculosis, and other airborne respiratory infections which may be spreading due to substandard living conditions. The court's decision addresses that public will as expressed by the legislature.

Proposed Plaintiff-Intervenors

As defendants have consented to the motion for intervention, proposed plaintiff-intervenors are added.

Class Certification

Plaintiffs move to certify a class consisting of HIV-infected individuals, who have applied or will apply to defendant for assistance consisting of rent security deposits, brokers' fees and/or moving expenses and who are:

1) without shelter;

2) living with relatives;

3) living in single room occupancy apartments; and

4) living in their own apartments.

The plaintiffs seek to have all four categories declared as living in emergency circumstances and qualifying for emergency aid.

CPLR § 901(a) delineates five requirements that are prerequisite for certification of a class action: (1) the class is so numerous that joinder of all of the members is impractical; (2) there are common questions of law or fact which predominate over any questions affecting only individual members; (3)...