Diamond v.
| Decision Date | 07 February 2019 |
| Docket Number | INDEX NO. 153312/2018 |
| Citation | 2019 NY Slip Op 30280 (U) |
| Parties | A'SEELAH DIAMOND and RUTH BRITT, on behalf of themselves and a class of those similarly situated, Plaintiffs, v. THE NEW YORK CITY HOUSING AUTHORITY and OYESHOLA OLATOYE, in her official capacity as Chairperson of the New York City Housing Authority, Defendants. |
| Court | New York Supreme Court |
MEMORANDUM DECISION
This putative class action proceeding concerns basic human rights. Plaintiffs A'seelah Diamond and Ruth Britt, on behalf of themselves and a Class similarly situated (collectively, Plaintiffs) seek both a declaratory judgment that NYCHA has breached the warranty of habitability, and a preliminary injunction ordering NYCHA to provide adequate heat and hot water services moving forward. Additionally, Plaintiffs seek consequential damages to compensate them for the loss of the habitable use of their homes and extra costs they incurred in procuring additional heating sources. Plaintiffs also seek punitive damages for NYCHA's knowing and intentional failure to meet habitable living obligations.
Defendants New York City Housing Authority (NYCHA), and its former chairperson, Oyeshola Olatoye (collectively, Defendants), move to dismiss the complaint, pursuant to both federal law and CPLR § 3211, or in the alternative to transfer the matter pursuant to CPLR § 325(d) to the Civil Court of the City of New York, Housing Part (hereinafter referred to as the Housing Court). Defendants argue that Plaintiffs' claims for injunctive relief are preempted by federal law, and that class certification is improper. Defendants further contend that as this is essentially a landlord tenant dispute, Plaintiffs' claims for damages are best suited to be resolved in Housing Court.
For the reasons set forth below, Defendants' motion to dismiss is granted.
Plaintiffs A'seelah Diamond and Ruth Britt are tenants in two separate apartment complexes that are owned by NYCHA in the Kings and Bronx counties of New York. NYCHA is an organization that provides public housing for low- and moderate-income New York residents. As a landlord, NYCHA has a non-delegable duty to provide basic housing needs such as heat and hot water to its residents. However, NYCHA has unequivocally breached its duty to provide the most basic services necessary for habitability (NYSCEF doc No. 40 at ¶ 3).
During the winter of 2017-2018, which was one of the coldest on record in the history of New York, NYCHA failed to provide heat or hot water to approximately 143,000 of 175,000 housing units, leaving roughly 323,098 NYCHA residents without the most basic needs that all New York City residents are entitled to by law (id.). NYCHA residents were forced to fend for themselves on winter days where temperatures reached well below freezing, layering themselves in blankets and purchasing space heaters with their own funds to try to heat their units (id. at ¶ 5). Some residents also attempted to heat their apartments by turning on their stoves, leaving themselves vulnerable to a severe risk of carbon monoxide poisoning. A very high percentage of NYCHA residents are senior citizens over the age of 65, who are more highly susceptible to suffering health conditions from the cold (id.). Many also suffered financially as well, particularly senior citizen residents who in some instances were forced to choose between purchasing space heaters and necessary medications (id. at ¶ 6).
While NYCHA's failure to provide heat and hot water is egregious in and of itself, evidence also demonstrates that NYCHA had reason to know that many of the heating systems and boilers in its buildings were in poor condition, and yet took inadequate action to make repairs. NYCHA also made numerous false statements that gravely understated the amount of homes that lost heat, as well as the length of time for which homes suffered outages (id. at ¶ 9-10). NYCHA also misrepresented the amount of time it took to close out resident complaints, as it often closed complaint files without checking in on the tenants who had filed them to ensure that their heat had adequately returned (id. at 11).
Plaintiffs seek to represent two classes of NYCHA residents, those who suffered a loss of heat last winter and those who are current and/or future residents and therefore have an ongoing risk of losing heat.
Plaintiffs originally commenced this action on April 12, 2018, but Defendants did not file an answer to the initial complaint. On May 21, 2018, Plaintiffs submitted both an order to show cause for a preliminary injunction (mot. seq. No. 001) and a motion for class certification (mot. seq. No. 002). At a hearing on May 31, 2018, the Court signed a consent order by which Plaintiffs agreed to withdraw these two motions without prejudice, and to serve and to file an amended complaint; both parties further agreed to a schedule for the submission of an answer and/or new motions. On June 12, 2018, Plaintiffs filed an amended complaint with causes of action for injunctive relief and monetary damages (NYSCEF doc No. 40). Defendants did not file an answer to the amended complaint but continued to make submissions in opposition to the two withdrawn motions. On July 10, 2018, Defendants submitted the current motion to dismiss (mot. seq. No. 003), which also incorporated Defendants' opposition arguments to those two withdrawn motions. The Court thereafter corresponded with the parties and directed them tosubmit memoranda of law that addressed all of the issues in the previous motions within the context of the current motion. All outstanding issues are now consolidated before the court in this omnibus motion (mot. seq. No. 003).
In discussing the background of this omnibus motion, the court must discuss a federal court action which involves overlapping issues: United States of America v New York City Housing Authority (). In support of their motion to dismiss, Defendants here rely on a consent decree that arose from the federal court action. NYCHA and the City of New York executed that consent decree with U.S. Attorney's on behalf of the Department of Housing and Urban Development (HUD) and the Environmental Protection Agency (EPA) on June 11, 2018 (NYSCEF doc No. 81 at 6).
However, on November 14, 2018, Judge William H. Pauley III issued an order that rejected the consent decree and adjourned the matter until NYCHA and HUD could come to an agreement regarding the future of the agency (United States of America v NYCHA., ___ F Supp 3d ___, 2018 WL 5985379 [SDNY 2018]). On January 31, 2019, NYCHA and the U.S. Attorney for the Southern District, on behalf of HUD and the EPA, reached an agreement whereby HUD executed an "administrative agreement" (see February 5, 2019 letter from Defendants, NYSCEF doc No. 102). The administrative agreement superseded the consent decree, which it rendered "null and void, except with respect to the admissions [of NYCHA's various failures to provide safe and adequate housing] contained in paragraph 7 ... which NYCHA ratifies and reaffirms" (Agreement, § XXII, https://www.justice.gov/usao-sdny/pr/manhattan-us-attorney-announces-new-agreement-fundamental-reform-nycha, accessed February 6, 2019).
A press release from the Justice Department describes the "administrative agreement" as"requiring NYCHA, under the supervision of a federal monitor, to fundamentally reform its operations and remedy living conditions for its residents, including lead paint hazards, mold growth, pest infestations, lack of heat, and inadequate elevator service" (Manhattan U.S. Attorney Announces New Agreement For Fundamental Reform at NYCH, https://www.justice.gov/usao-sdny/pr/manhattan-us-attorney-announces-new-agreement-fundamental-reform-nycha, as accessed February 6, 2019). The release stated that the agreement "went into effect immediately" and "does not require court approval" (id.). Instead, the U.S. Attorney for the Southern District will withdraw the complaint in the federal action "within 14 days of appointment of the monitor," and will seek "dismissal without prejudice of the complaint (Agreement, § I.11, https://www.justice.gov/usao-sdny/pr/manhattan-us-attorney-announces-new-agreement-fundamental-reform-nycha, accessed February 6, 2019). While Defendants refer to the June 11, 2018 consent decree, the administrative agreement supersedes it with respect to Defendants' arguments regarding federal preemption of Plaintiffs' application for injunctive relief.1
Plaintiffs seek a preliminary injunction directing Defendants "to devise and implement a 90-day plan for addressing [NYCHA's] pervasive and persistent heat and hot water outages" and a permanent injunction "ordering Defendants to provide Plaintiffs and all other NYCHA tenants with heat and hot water consistent with NYCHA's obligations under New York law" (NYSCEF doc No. 85 at 9-10).
Defendants make two arguments as to Plaintiffs' application for injunctive relief: that the action is preempted by federal law and that Plaintiffs do not have standing to seek such relief, as there is no private right of action on which they could seek injunctive relief from NYCHA.
The Supremacy Clause (US Const, art VI, cl [2].) provides that federal law "shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Contrary notwithstanding." Thus, both parties acknowledge that, as the Supreme Court has held, "Congress has the power to preempt state law" (Crosby v. Nat'l Foreign Trade Council, 530 US 363, 372 [2000]).
Preemption analysis is tiered. The first tier is for areas where Congress expressly preempts (see Arizona v United States, 567 US 387, 388 [2012]). The next tier is where intent to preempt can be inferred from a "framework of regulation"...
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