Helping Out People Everywhere (HOPE) v. Deich
| Decision Date | 28 September 1992 |
| Parties | HELPING OUT PEOPLE EVERYWHERE , Petitioner, v. David DEICH, Respondent. |
| Court | New York City Court |
William E. Mariano, White Plains, for petitioner.
Westchester/Putnam Legal Services (Ann M. McDonald, of counsel), White Plains, for respondent.
Petitioner, a not for profit corporation, commenced this summary proceeding pursuant to R.P.A.P.L. §§ 713.7 and 713.10 to remove Respondent, an otherwise homeless person, who is HIV positive, from the premises known as Apt. 1, 187 Ashburton Ave., City of Yonkers, N.Y., on the grounds that Respondent's license to remain had been revoked and he was no longer in lawful possession of the premises.
Respondent now moves for summary judgment pursuant to CPLR § 3212, a summary determination pursuant to CPLR § 404(b), or in the alternative for a stay of this summary proceeding pending the disposition of a class action suit against Petitioner and Westchester County Department of Social Services [WCDSS], presently pending before the Supreme Court, seeking a stay and consolidation of the instant proceedings with the Supreme Court case. Petitioner opposes Respondent's motion for summary judgment and alternative motion for a stay of the instant proceedings and cross-moves for summary judgment.
On a motion for summary judgment pursuant to CPLR § 3212 the question before the Court is whether there are facts sufficient to require a trial of any issue of fact or in the alternative, whether the cause of action or defense is established sufficiently based on all the papers and proof submitted, to warrant the Court, as a matter of law, to direct judgment in favor of any party. CPLR § 3212(b). "The proponant of a motion for summary judgment must make a prima facia showing of entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of material issues of fact." Baldwin Plaza Associates v. Plaza Dental Group P.C., N.Y.L.J. June 24, 1992, p. 24, c. 5-6 quoting Canosa v. Abadir, 165 A.D.2d 823, 560 N.Y.S.2d 198 (2nd Dept.1990).
These issues are to be determined by examination of all the papers and proof submitted. CPLR § 3212(b) provides specifically what the papers and proof must contain:
A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit.
In this case, notwithstanding their disagreement upon how this Court should apply the law to the facts, the parties are in agreement as to the facts material and relevant to this summary proceeding. The parties agree on the following material and relevant facts:
1. David Deich signed the "HOPE" license agreement on July 10, 1991 (See attached exhibit A); and was assigned to one bedroom in a three bedroom apartment described as a temporary shelter;
2. HOPE is a Not-for-Profit social service agency that provides for the homeless and others with special needs. It is essentially a provider of services for, and is funded by, the Westchester County Department of Social Services [WCDSS].
3. David Deich is an otherwise homeless person placed in the HOPE program because he is HIV positive.
4. Paragraph two of the aforesaid agreement, states, "HOPE agrees to allow the licensee to use for shelter, on a day to day temporary basis, Apartment No. 1 in the building located at 187 Ashburton Ave., Yonkers, N.Y." and further, "it is agreed that the unit assigned may be changed from time to time and also used by HOPE to provide temporary shelter to other individuals and households."
5. Paragraph four of the agreement provides that "the license may be revoked at any time by HOPE."
6. David Deich signed "attachment A" to the agreement which further explained the limited nature of the "temporary emergency shelter". Paragraph three states (See attached exhibit B).
7. David Deich and his case manager signed a copy of the HOPE Emergency Housing Assistance Program Housing Rules which outline the rules for participation in the program including: no overnight guests, no pets, maintenance of the apartment in a clean orderly manner, and attendance at all meetings with case manager and all programs, as directed by the case manager. (See attached Exhibit C.)
8. David Deich violated the terms and conditions of the agreement, 1 as established by Petitioner's exhibits B-F (consisting of a detailed record of the case manager's observations and conversations), and Deich's affidavit paragraphs 5-8 wherein Deich admits violation of the rules and intent to disregard rules in the future stating, "I would not comply with such a rule, because to do so would be very humiliating to me."
9. On October 1, 1991 HOPE terminated Mr. Deich's license to remain in the program but because of WCDSS's obligation to provide alternate shelter HOPE was not able to transfer him to another facility until February of 1992.
10. On February 3, 1992 Deich's license to occupy the above mentioned premises was terminated and he was given 10 days from the service of the Notice to vacate the premises.
11. David Deich continues to reside in the above premises pending the outcome of this summary proceeding. He has occupied Apt. 1, 187 Ashburton Ave. continuously for approximately 15 consecutive months.
The disagreement between the parties centers upon how the relevant facts should be applied to the pertinent case law and with what result. Respondent contends that despite the license agreement, he is not a mere licensee or person residing unlawfully; that Petitioner's operation of Respondent's residence as financed and supervised by WCDSS constitutes state action; and that Respondent has a property interest in this particular bed at the HOPE Shelter which cannot be terminated by either of the Petitioner's present petitions. Respondent further contends that because HOPE is a "state actor", his residency can only be terminated for "good cause" pleaded and proven and following appropriate service of a notice to cure in accordance with RPAPL 741(4).
Petitioner opposes Respondent's motion for summary judgment and alternative motion for a stay of the instant proceedings and cross-moves for summary judgment. Petitioner contends that Respondent's attempt to characterize his relationship with HOPE as a landlord/tenant relationship, despite the license agreement signed by the parties, based on an alleged state action entanglement between HOPE's provision of housing and the WCDSS, is without merit. Petitioner argues that before the Court addresses the issues of state action and due process the Respondent must demonstrate that a constitutionally protected property interest is at stake. He also contends that HOPE was formed not only to locate shelter for select, qualified homeless persons, but also to provide intensive case management services for those selected and thus, HOPE's operation of this emergency housing program does not constitute state action. Petitioner acknowledges Respondent's constitutionally protected interest in emergency shelter assistance, but stresses that the relevant case law does not support an extension of this interest to a particular bed in a shelter. Petitioner emphasizes that HOPE is not attempting to terminate Respondent's entitlement to emergency shelter, rather they are trying to remove him from a particular shelter program following the termination of his license. Finally, Petitioner argues the parties' intent to enter into a license agreement is clearly evidenced in the written contract executed and further demonstrated by the structure and nature of this shelter program which seeks to provide shelter and treatment for a designated group of otherwise homeless individuals with "special needs" because they are HIV positive.
Initially, the Court denies Respondent's request to stay this proceeding. "There is also a strong rule against staying a summary proceeding, or removing it,...
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