New York City Coalition to End Lead Poisoning v. Guiliani

• Decision Date: 09 December 1997
• Citation: 245 A.D.2d 49,668 N.Y.S.2d 1
• Parties: , 1997 N.Y. Slip Op. 10,498 NEW YORK CITY COALITION TO END LEAD POISONING, et al., Plaintiffs-Respondents, Helen Walker, et al., Plaintiffs-Intervenors-Respondents, v. Rudolph GIULIANI, as Mayor of The City of New York, et al., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 1

668 N.Y.S.2d 1

245 A.D.2d 49, 1997 N.Y. Slip Op. 10,498

NEW YORK CITY COALITION TO END LEAD POISONING, et al Plaintiffs-Respondents Helen Walker, et al., Plaintiffs-Intervenors-Respondents, v. Rudolph GIULIANI, as Mayor of The City of New York, et al Defendants-Appellants.

Supreme Court, Appellate Division First Department.

Dec. 9, 1997.

Lucy A. Billings, for Plaintiffs-Respondents.

Alan G. Krams, Carmen Rita Torrent, for Defendants-Appellants.

Before SULLIVAN, J.P., and ELLERIN, TOM, MAZZARELLI and ANDRIAS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Louis York, J.), entered May 1, 1996, which, inter alia, held defendants City of New York and its Commissioner of the Department of Housing, Preservation and Development ("HPD") in civil and criminal contempt, certified plaintiffs as a class, required the City defendants to disseminate notice to the class and assessed attorneys' fees and costs against the City and State defendants, unanimously modified, on the law, to vacate the criminal contempt order against the City defendants, and the class certification and assessment of attorneys' fees and costs against the State defendants, and to remand the issue of notice to the class as against the City defendants in accordance herewith, and otherwise affirmed, without costs.

Defendants City of New York and HPD were properly held in civil contempt for repeated violation of the preliminary injunction directing them to promulgate and enforce written policies and procedures for carrying out their duties under Administrative Code of the City of New York § 27-2013(h) and related statutes to alleviate the danger of children being exposed to lead-based paint in multiple dwellings (Judiciary Law § 753[A][3]; McCain v. Dinkins, 84 N.Y.2d 216, 225-227, 616 N.Y.S.2d 335, 639 N.E.2d 1132; see, New York Coalition to End Lead Poisoning v. Koch, 216 A.D.2d 219, 629 N.Y.S.2d 17). First, we agree with the motion court that the proposed amendments to 28 RCNY 11-01 et seq., which prioritized responses to lead-based paint complaints, do not constitute compliance with the preliminary injunction in view of HPD's admission that it would not respond to priority 2 and 3 complaints. Second, while 24 RCNY 173.14 sets forth abatement standards, that regulation does not indicate when children and pregnant women should be relocated from a dwelling undergoing abatement, and, accordingly, its incorporation into HPD's proposed amendments to 28 RCNY 11-01 et seq. does not satisfy that portion of the preliminary injunction obligating HPD to address that relocation issue. Third, although the issue was not addressed in the preliminary injunction, the motion court properly observed that HPD had not created any time limits for conducting inspections or for issuing notices of violations. While Administrative Code § 27-2115 allows a tenant/complainant to go to court when HPD fails to issue a notice of violation within 30 days of a request, the purpose and intent of Administrative Code § 27-2013[h] and related statutes would be defeated if section 27-2115 became the rule rather than the exception by rendering HPD's participation and duties largely superfluous. Finally, those aspects of the HPD regulations that were previously deemed sufficient were not affected by the motion court's findings of noncompliance (see, New York Coalition to End Lead Poisoning v. Koch, Sup.Ct.N.Y.County, August 2, 1990, DeGrasse, J., affd. on opn. below 170 A.D.2d 419, 566 N.Y.S.2d 861).

However, we reverse the finding of criminal contempt, the evidence being insufficient to prove beyond a reasonable doubt that the HPD Commissioner deliberately and willfully violated the preliminary injunction (see, Judiciary Law, § 750[A][3]; see, McCain v. Dinkins, supra, at 226, 616 N.Y.S.2d 335, 639 N.E.2d 1132; see also, Matter of Murray, 98 A.D.2d 93, 99, 469 N.Y.S.2d 747; Matter of Sheridan v. Kennedy, 12 A.D.2d 332, 212 N.Y.S.2d 296; Various Tenants of 446-448 W. 167th St. v. New York City Dept. of Hous. Preservation & Dev., 153 Misc.2d 221, 222-223, 588 N.Y.S.2d 840, affd. 194 A.D.2d 311, 603 N.Y.S.2d 718).

Plaintiffs' motion for class certification was properly granted against the City defendants, as the five prerequisites under CPLR 901, namely numerosity, commonality, typicality, adequacy of representation, and the superiority of the class action method, were demonstrated by the plaintiffs (see, In re Colt Industries Shareholder Litigation, 77 N.Y.2d 185, 194, 565 N.Y.S.2d 755, 566 N.E.2d 1160; Seittelman v. Sabol, 217 A.D.2d 523, 526, 630 N.Y.S.2d 296, appeal dismissed 87 N.Y.2d 860, 639 N.Y.S.2d 312, 662 N.E.2d 793; Tindell v. Koch, 164 A.D.2d 689, 694-695, 565 N.Y.S.2d 789). The governmental operations rule is no bar to class certification. That rule cautions against class certification where governmental operations are involved, since any relief granted to the named plaintiffs would adequately flow to and protect others similarly situated under principles of stare decisis (see, Matter of Martin v. Lavine, 39 N.Y.2d 72, 75, 382 N.Y.S.2d 956, 346 N.E.2d 794; Matter of Jones v. Berman, 37 N.Y.2d 42, 57, 371 N.Y.S.2d 422, 332 N.E.2d 303; Heard v. Cuomo, 142 A.D.2d 537, 539, 531 N.Y.S.2d 253). There are exceptions to this rule, however, such as where the governmental entity has repeatedly failed to comply with court orders affecting the proposed class, rendering it doubtful that stare decisis will operate effectively (see, Lamboy v. Gross, 126 A.D.2d 265, 273-274, 513 N.Y.S.2d 393; see also, Varshavsky v. Perales, 202 A.D.2d 155, 156, 608 N.Y.S.2d 184); where the entity fails to propose any form of relief that purports to protect the plaintiffs (see, Seittelman v. Sabol, 217 A.D.2d 523, 526, 630 N.Y.S.2d 296); where the plaintiffs' ability to commence individual suits is highly compromised, due to indigency or otherwise (see, Tindell v. Koch, 164 A.D.2d 689, 695, 565 N.Y.S.2d 789; Lamboy v. Gross, supra; Davis v. Perales, 137 Misc.2d 649, 655, 520 N.Y.S.2d 925 [Sup.Ct.Kings Co. 1987] ); or where the condition sought to be remedied by the plaintiffs poses some immediate threat that cannot await individual determinations (Lamboy v. Gross, supra).

Several of these factors exist in the present case. The record amply demonstrates the City defendants' refusal to fully comply with previous court orders directing them to issue regulations in conformance with their statutory duties under the Administrative and Housing Codes. The two civil contempt orders speak volumes in this regard. Further, we agree that the nature of the plaintiff class in this case, consisting primarily of infants, some already afflicted by lead poisoning, renders individual lawsuits highly unlikely. ¹ Also, plaintiffs make...