McNeill v. New York City Housing Authority

• Decision Date: 14 August 1989
• Docket Number: No. 88 Civ. 5870 (JMW).,88 Civ. 5870 (JMW).
• Citation: 719 F. Supp. 233
• Parties: Brenda McNEILL, et al., on behalf of themselves and all other persons similarly situated, Plaintiffs, v. The NEW YORK CITY HOUSING AUTHORITY, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

719 F. Supp. 233

Brenda McNEILL, et al., on behalf of themselves and all other persons similarly situated, Plaintiffs, v. The NEW YORK CITY HOUSING AUTHORITY, et al., Defendants.

No. 88 Civ. 5870 (JMW).

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

August 14, 1989.

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John Kirklin, Director of Litigation, Legal Aid, Civil Appeals & Law Reform Unit (Scott Rosenberg, of counsel), The Legal Aid Soc., Ann Moynihan, Attorney-in-Charge (Annette DePalma, David Frazer, of counsel), New York City, Brooklyn Legal Services, Corp. B, John Grey, Project Director (Russell Engler, David Pieragostini, of counsel), Brooklyn, N.Y., for plaintiffs.

Manuel H. Quintana, Gen. Counsel (Brenda Spears, Raphael Samuel, Harry Steinberg, Robert Graziano, Beth Rosen, of counsel), New York City, for defendant NYCHA.

Gerald Dunbar, New York City, for defendant Annico Development Corp.

Gutman, Mintz, Baker & Sonnefeldt, Richmond Hill, N.Y., for proposed defendant Fulton Park Assocs. No. 4.

WALKER, District Judge:

Plaintiffs, all low-income tenants in New York City, challenge the policies and practices employed by defendant New York City Housing Authority ("NYCHA") when federal "Section 8" housing subsidies are suspended or terminated because of their landlords' failure to make repairs to their apartments. In sum, they claim that NYCHA's failure to provide adequate notice, opportunities for pre-termination hearings, and assistance in locating housing violate due process guarantees and federal housing regulations, and virtually assure that plaintiffs will live under a continued threat of eviction for their landlords' failures, over which they have little or no control. Plaintiffs also challenge their landlords' actions undertaken pursuant to such policies and seek to enforce their individual housing contracts. Ultimately, plaintiffs seek injunctive relief, declaratory relief, and damages against their landlords and NYCHA.

Plaintiffs and eight proposed plaintiff-intervenors move now for intervention, pursuant to Fed.R.Civ.P. 24(b)(2), joinder, pursuant to Fed.R.Civ.P. 19(a) and 20(a), class action certification, pursuant to Fed.R. Civ.P. 23(a) and 23(b)(1) or 23(b)(2) and preliminary injunctive relief, pursuant to Fed. R.Civ.P. 65. Defendant Annico Development Corporation cross-moves for judgment on the pleadings pursuant to Fed.R. Civ.P. 12(c).

For the reasons stated below, plaintiffs' motions for intervention, joinder and class action certification are granted. The class shall be composed of all tenants participating in the Section 8 "Existing Housing" assistance program whose assistance has been or will be terminated by NYCHA because of the landlord's failure to make repairs to an apartment. Additionally, the Court grants plaintiffs' motion for a limited preliminary injunction enjoining the named and joined defendant landlords from suing or recovering from such tenants amounts greater than the tenants' share of rent for their apartments under their most recent Section 8 contracts. The Court also grants Annico's motion for judgment on the pleadings in part.

I. BACKGROUND

A. The Section 8 Program

The federal lower-income housing assistance program, known as Section 8 ("Section 8"), 42 U.S.C. § 1437f, was designed to encourage the maintenance of low-income housing units by private landlords at federal, state, and city housing code standards of health and safety. Under this program, qualifying low-income families receive housing assistance in the form of a rent subsidy paid directly to their respective landlords. Upon approval for Section 8 participation, the applicant is issued a Family Participation Certificate ("certificate"), and instructed to locate an apartment which is acceptable under the Section 8 criteria, as set forth in 24 C.F.R. § 882.109 and § 882.209(h).¹

Once the Section 8 participant locates an apartment, the local Section 8 administrator, in this case NYCHA, must make an initial inspection of the premises to determine whether it is, at the outset, acceptable under the applicable housing codes and standards. If the apartment is approved, Section 8 participation is formalized in two separate contractual agreements: a lease agreement between the private landlord and her tenant; and a Housing Assistance Payments contract (the "HAP contract") between the landlord and NYCHA.

The standard Section 8 lease, which is prepared and authorized by NYCHA, provides that:

The landlord at his own cost and expense shall make all repairs to the premises ... and shall maintain the building ... and each and every part thereof ... in good repair and in decent, safe and sanitary condition, in compliance with the requirements of all applicable Federal, State and City statutes, codes, ordinances, regulations and standards now or hereinafter in effect with regard thereto.

By the terms of the HAP contract, the landlord agrees to:

maintain and operate the contract unit ... to provide decent, safe, and sanitary housing in accordance with 24 C.F.R. § 882.109, including the provision of all the services, maintenance and utilities set forth in the lease. If NYCHA determines that the owner is not meeting one or more of these obligations, NYCHA shall have the right, in addition to its other rights and remedies under this contract, to terminate or reduce housing assistance payments or to terminate this contract.

NYCHA also has continuing responsibilities with respect to Section 8 apartments. In addition to making monthly subsidy payments to the landlords, NYCHA is obliged to make annual inspections of the apartment for the duration of the tenancy, to ensure that the premises continue to conform to the applicable housing standards. 24 C.F.R. § 882.116. If an inspection reveals housing quality violations, NYCHA sends the following notice to the landlord, and a copy to the tenant:

On ______, a member of our staff inspected the building and found the following serious deficiencies, causing the building and/or apartment to no longer be decent, safe, and sanitary:

All hazardous conditions must be corrected within 24 hours of your receipt of this letter. All the remaining deficiencies enumerated above must be corrected by ______. If they are not, it is our intention to suspend the Section 8 Housing Subsidy in its entirety, assist the family to find other housing, and cancel the contract for this apartment, with no further notice to you.

Furthermore, our inspection also indicated the following necessary repairs and corrections, which must be completed within thirty (30) days of this letter.

If you have any questions in reference to this matter, please telephone me immediately at ______.

If the landlord fails to make repairs within the time allowed, NYCHA sends a substantially similar follow-up notice to the landlord, and the following letter to the tenant:

Since your landlord has failed to make the necessary repairs to your apartment, despite our notification to him thereof, the subsidy for your apartment is being terminated as of ______.

If your landlord fails to make the necessary repairs within sixty days, it will be necessary for you to find another acceptable apartment if you wish to remain in the NYCHA Section 8 Program. In order to do this, you require a Certificate of Family Participation. In order to arrange to obtain one, please telephone me immediately at ______. However, be sure to remember that you should not move to any new apartment until the Section 8 leases are approved by us.

If your landlord fails to make the necessary repairs and you do not find another suitable apartment, it will be necessary for us to terminate your participation in our Section 8 Program. If you have any questions in reference to this matter, please contact me.

Of course, if the necessary repairs are made, please notify us immediately.

Before Section 8 landlords may sue their tenants for eviction or collection of rent, they must obtain permission from NYCHA.

B. The Main Action

Plaintiffs, Section 8 tenants, have brought this action to challenge NYCHA's policies and practices detailed above. In sum, they allege that NYCHA's policies and procedures concerning the suspension and termination of subsidies upon the failure of the landlord to properly maintain the premises violate the United States Housing Act, 42 U.S.C. § 1437, federal regulations, and due process of law. The amended complaint alleges that:

(1) NYCHA's policy and practice of suspending or terminating the HAP Contract before exhaustion of other remedies for obtaining compliance with minimum Housing Quality Standards violate 24 C.F.R. §§§ 882.211(c), 882.116(p), 882.109; HUD Handbook ¶¶ 5-9, 5-10; and 42 U.S.C. § 1437, for which a cause of action is created by 42 U.S.C. § 1983;

(2) NYCHA's policy and practice of suspending or terminating Section 8 benefits because of non-hazardous conditions in an apartment, even after all hazardous conditions have been corrected, violate 24 C.F.R. § 882.109 and 42 U.S.C. § 1437, for which a cause of action is created by 42 U.S.C. § 1983;

(3) NYCHA's policy and practice of failing to assist tenants in locating alternative eligible housing when a HAP Contract is terminated violate HUD Handbook 5-9, 5-10, for which a cause of action is created by 42 U.S.C. § 1983;

(4) NYCHA's policy and practice of issuing insufficient and materially misleading notices of suspension or termination violates 42 U.S.C. § 1437d(k)(1); HUD Handbook 7420.7 ¶¶ 5-9(b)(2), 5-10; 24 C.F.R. § 882.209(c)(4), (5), 882.116(f)(1); and the due process clause of the Fourteenth Amendment to the United States Constitution, for which a cause of action is created under 42 U.S.C. § 1983;

(5) NYCHA's policy and practice of suspending or terminating HAP Contracts based upon the landlords's alleged violation of Housing Quality Standards without affording the tenant an opportunity to review or challenge

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