Housing Works, Inc. v. City of New York

• Decision Date: 12 November 1999
• Docket Number: No. 99 Civ. 8975(AGS).,99 Civ. 8975(AGS).
• Parties: HOUSING WORKS, INC., Plaintiff, v. CITY OF NEW YORK; New York City Department of Homeless Services(DHS); Martin Oesterreich, Commissioner of DHS; Susan Wiviott, Associate Commissioner of DHS; John/Jane Does # 1-10; United States Department of Housing and Urban Development (HUD); and Andrew Cuomo, Secretary of HUD, Defendants.
• Court: U.S. District Court — Southern District of New York

72 F.Supp.2d 402

HOUSING WORKS, INC., Plaintiff, v. CITY OF NEW YORK; New York City Department of Homeless Services(DHS); Martin Oesterreich, Commissioner of DHS; Susan Wiviott, Associate Commissioner of DHS; John/Jane Does # 1-10; United States Department of Housing and Urban Development (HUD); and Andrew Cuomo, Secretary of HUD, Defendants.

No. 99 Civ. 8975(AGS).

United States District Court, S.D. New York.

November 12, 1999.

COPYRIGHT MATERIAL OMITTED

Matthew D. Brinckerhoff, David H. Gans, Emery, Cuti, Brinckerhoff & Abady, P.C., New York, NY, for Plaintiff.

Naomi Sheiner and Robert Bailey, Asst. Corp. Counsel, New York, NY, for Defendants.

OPINION AND ORDER

SCHWARTZ, District Judge.

Plaintiff Housing Works, Inc. ("plaintiff" or "Housing Works") filed this action seeking injunctive and declaratory relief. Plaintiff asserts claims under 42 U.S.C. § 1983, alleging that it has been deprived of its rights to freedom of speech and equal protection guaranteed by the First and Fourteenth Amendments to the U.S. Constitution. Plaintiff also asserts claims pursuant to Article I, §§ 8, 9, 11 of the New York State Constitution and challenges New York State administrative law. This matter is now before the Court on plaintiffs motion for a preliminary injunction directing defendants (i) to reinstate plaintiffs original rankings in defendants' ranking of the 1999 applications for U.S. Department of Housing and Urban Development ("HUD") funding, and (ii) to transmit the reinstated ranking to HUD before the close of the application deadline for next fiscal year. Defendants cross-move the Court to abstain from proceeding with this action. For the reasons set forth below, plaintiffs motion is GRANTED and defendants' cross-motion is DENIED.

I. FACTS

The facts below are undisputed except where otherwise indicated.

A. History of tension between Housing Works and the Giuliani Administration:

Housing Works is a not-for-profit corporation that operates two supportive housing programs in New York City. Defendants are the City of New York ("City"), the City's Department of Homeless Services ("DHS"), DHS Commissioner Martin Oesterreich ("Oesterreich"), former DHS Associate Commissioner for Policy and Planning Susan Wiviott ("Wiviott"), and DHS employee Sheila Sawyer ("Sawyer") who is one of the Jane Does, (Sawyer Aff. ¶ 3), (collectively: "defendants").

Housing Works, begun in 1991, provides housing and other services for homeless "persons with AIDS and HIV" ("PWAs"). (Decl. of Charles King, dated Oct. 6, 1999 ("King Decl."), ¶¶ 2, 23.) Plaintiff's clients are not only PWAs but individuals who are also mentally ill, emotionally disturbed, financially needy, or chemically dependent, including individuals with such problems who were rejected by other providers. (King Decl. ¶ 3.) Housing Works has a history of criticizing what it perceives as the indifference to PWAs of the administration of Mayor Rudolph Giuliani. It concedes that it has disrupted a Town Meeting, engaged in civil disobedience in the entrance of the mayor's office, taken over the Division of AIDS Services offices, disrupted HIV Planning Council meetings and engaged in other similar conduct, some of which is referred to below. (King Decl. ¶ 59 n. 10.)

In 1994, Housing Works vigorously opposed plans to abolish the City's Division of Aids Services ("DAS") (now known as: Division of Aids Services and Income Support or "DASIS"). (King Decl. ¶ 19.) Housing Works particularly criticized then Deputy Mayor Fran Reiter ("Reiter"), in a series of demonstrations. (King Decl. ¶ 20.) Housing Works' representatives, accompanied by a TV crew, entered a meeting that plaintiff alleged had been convened for the purpose of abolishing DAS, and began to read on camera from a document that plaintiff refers to as Reiter's "secret" agenda. As quoted in the New York Times of December 15, 1994, Reiter responded by decrying Housing Works' "non-negotiable demands and grandstanding" that had engendered "unproductive, time wasting meetings". (King Decl. ¶ 21; Id. at Ex. B.) The Administration ultimately did not abolish DAS. (King Decl. ¶ 22.)

Housing Works organized the "This City Is Ours" rush-hour demonstration against the mayor on April 25, 1995, blocking four bridges and tunnels. (King Decl. ¶ 59 n. 10.) Later, Housing Works commenced an action challenging the benefits provided to PWAs by the City, Henrietta D. v. Giuliani, No. 95 Civ. 0641(SJ), 1996 WL 633382, 21 A.D.D. 329 (E.D.N.Y. Oct. 25, 1996) (seeking to force Human Resources Administration to provide better benefits). (See King Decl. ¶ 15.).

In March of 1997, Charles King ("King"), co-executive director of Housing Works, attended a meeting between the City's Human Resources Administration ("HRA") and Housing Works concerning new contracts and contract renewals. (King Decl. ¶¶ 1, 32.) Housing Works alleges that HRA's then-Commissioner Lillian Barrios-Paoli ("Barrios-Paoli") (i) threatened Housing Works with retaliatory treatment if it continued to "cause trouble" by advocating on behalf of PWAs, (ii) asked Housing Works why it was so hostile to the Giuliani Administration, and (iii) advised that Housing Works could not expect favorable treatment with Housing Works' attitude. (King Decl. ¶ 33.). Pamela S. Brier ("Brier"), Chair of the Board of Directors of Housing Works, also attended the March 1997 meeting and corroborates King's version. (Affidavit of Pamela S. Brier, dated April 2, 1998, attached to King Decl. as Ex. I ("Brier Aff."), ¶¶ 1-4.)

Brier advised King to keep a low profile, which he did until October 22, 1997, when Housing Works publicly demonstrated against what it perceived as the City's unfairness in not entering into certain contracts with Housing Works. (Brier Aff. ¶¶ 6-7.) King was arrested along with 37 others after what Housing Works alleges was a "peaceful demonstration" at the offices of HRA and at Mayor Giuliani's reelection headquarters. (King Decl. ¶¶ 36, 59 n. 10.) The same day, HRA issued a press release stating that it would not renew Housing Works' contracts totaling approximately $ 4.5 million and would no longer enter into contracts with Housing Works relating to Housing Works ongoing projects. (King Decl. ¶¶ 37, 46.)

In September 1997, approximately one month prior to HRA's press release referred to above, Lou-Ellen Barkan ("Barkan"), then Chief of Staff for Deputy Mayor Randy Mastro ("Mastro"), discussed Housing Works with a City employee (whose name she cannot recall). (King Decl. ¶ 40.) The first entry in Barkan's two pages of notes on that discussion is: "Housing Works (Fran Hates them)", referring to Fran Reiter, and below that: "Act-up" and "AIDS advocacy". (King Decl. ¶ 40 (emphasis in original); Ex. J att. to King Decl.) Defendants note that City officials who were considering the contracts with Housing Works have denied that Reiter played any role in the Administrations' decisions as to the contracts. (Bailey Aff. in Opp. to Applications for Preliminary Injunctions ¶ 179, submitted to state court. ("Bailey State Aff."))

The hand-written notes of Beth Kaswan ("Kaswan"), the City's Chief Procurement Officer and of the head of the Mayor's Office of Contracts ("MOC"), and of MOC staffer Jeffrey Weinstein ("Weinstein"), certain of which were prepared prior to October 22, 1997, the date of the press release, refer to the City's concern that Housing Works might embark on another demonstration or protest. (King Decl. ¶ 41; Ex. K.L att to King Decl.) Weinstein wrote, on October 7, 1997, "Doing nothing will force HWks to do something — going public". (King Decl. ¶ 42 n. 6; Ex. L. at 3, att to King Decl.) Both Kasman and Weinstein referred in their notes dated October 20, 1997 to a strong rumor that Housing Works would protest at City Hall, with Kasman adding that Mastro "needs a report on all they (HW) did wrong" and that Mastro had told Barrios-Paoli that she "must be prepared to respond on camera tomorrow". (King Decl. ¶ 43, 44; Ex. K at 11; Ex L at 5.) Kasman's notes dated October 21, 1997 bracket news of an imminent protest together with a reference to a meeting with David Klasfeld ("Klasfeld"), then on Mastro's staff. (King Decl. ¶ 45; Ex. K at 13.) Kasman's hand written notes also refer to Housing Works' demonstrations or marches that she had heard of from Richard Bonamarte, HRA's Chief Contracting Officer, from Gerard Hoey, HRA's Inspector General at the Department of Investigation, and from Barkan. (King Decl. ¶ 41 n. 5.)

On October 29, 1997, in a meeting with Barkan following the demonstration, Kasman wrote "Housing Works broke into campaign headquarters & chained themselves to desks". (King Decl. ¶ 47; Ex. K at 13.) Weinstein, attending the MOC meeting over which Kasman presided, wrote "This a.m. chained themselves to desks at mayor's campaign headquarters". (King Decl. ¶ 48; Ex. L at 11.)

In November 1997, Housing Works commenced an action in state court entitled Housing Works, Inc. v. City of New York, 680 N.Y.S.2d 487, 255 A.D.2d 209 (N.Y.App.Div.1998), challenging the nonrenewal and termination of Housing Works contracts for the provision of supportive services to PWAs. (King Decl. ¶¶ 15, 49.)

In March 1998, Housing Works obtained and released to reporters a copy of a report commissioned by the Mayor's Office of AIDS Policy that was highly critical of HRA. The New York Times, on March 12, 1998, called the report "nightmarish", and summed it up by stating that HRA had permitted PWAs to be housed in hotels where "criminal activity is rampant", citing "drug dealing, prostitution and extortion", with the full knowledge of some City workers. (Ex. O attached to King Decl.; King Decl. ¶¶ 18, 61.) The report received wide circulation in the media, and Mayor Giuliani was quoted as saying it was "a very very false picture ... for the purposes of getting attention for themselves". The mayor's press secretary was quoted as saying that Housing Works was seeking to promote "their...