New York City Housing Authority v. Medlin

• Decision Date: 29 June 1968
• Citation: 57 Misc.2d 145,291 N.Y.S.2d 672
• Parties: NEW YORK CITY HOUSING AUTHORITY, Petitioner, v. John MEDLIN and Mildred Medlin et al., Respondents.
• Court: New York City Court

Page 672

291 N.Y.S.2d 672

57 Misc.2d 145

NEW YORK CITY HOUSING AUTHORITY, Petitioner, v. John MEDLIN and Mildred Medlin et al., Respondents.

New York City Civil Court, Trial Term, New York County.

June 29, 1968.

Harry Levy, New York City, Harold Weintraub, New York City, of counsel, for plaintiff.

Harold J. Rothwax, Nancy E. LeBlanc, New York City, and Michael B. Rosen, of counsel, for defendants.

MAURICE WAHL, Justice.

In these multiple, nonpayment proceedings, consolidated for the purpose of a joint trial, there is no dispute regarding the nonpayment of the rent due by each tenant as claimed by the landlord.

The issue presented is by these 14 tenants of the Lillian Wald Houses project of the landlord Authority, united in interest, in urging a rent abatement, by way of counterclaim, amounting to one half of the rent due from each of tenants for the months of March, April and May, 1968, except for two tenants who are in arrears for April and May, 1968. These counterclaims are founded on a claim of inadequate police protection afforded them in this very large public housing development where 1,861 tenants reside in 16 buildings.

The landlord, a public housing authority existing pursuant to the Public Housing Law, is exempt from the provisions of the New York City Rent and Rehabilitation Law (Local Law No. 20, Laws of 1962, as amended, sections Y51--3.0, subd. e, par. 2(f) and Y51--6.0, subd. e, New York City Administrative Code). All tenants in the Authority's projects have a written lease for one month, which is automatically renewed for successive one month terms, unless terminated as therein provided. There is no covenant in the lease dealing with police protection.

To implement the housing article of the New York State Constitution, Article XVIII, the Legislature enacted the Public Housing Law (chapter 44A, Consolidated Laws, Laws of 1939, chapter 808, as amended). The Public Housing Law, Section 402, makes special provisions with respect to New York City. Subdivision 5 thereof authorizes the creation and maintenance of a police force. It vests the Authority with 'discretion to provide and maintain a housing police department and a uniformed housing police force.' It further vests such police force with certain powers, authority and jurisdiction.

Although the Authority maintains a police force of approximately 1,100 men, including the assignment of ten police and two security guards at Lillian Wald Houses, the tenants claim that this assigned number is inadequate in light of the alleged high crime rate in and about the project. They claim that the Authority has failed to provide the safe promises it is required to furnish under section 2 of the Public Housing Law; that this is an implied covenant of the lease which is a mandate imposed upon the Authority by law. It is urged that in order to insure safety in the Authority's public housing projects, this policy enunciated in section 2 is also evidenced by the enactment of section 402(5), Public Housing Law, in 1967.

The short answer to this latter contention is that the power granted to the Authority to provide for and maintain a housing police department is couched in discretionary terms and is not of a mandatory nature. If a positive and affirmative duty to insure safety were to be imposed upon the Authority in respect to conditions at each of its 150 Housing projects in New York City, a statutory provision fixing the number of police officers required to be assigned to each project in relation to the number of tenants, the number of buildings and the incidence of crime at each of the projects would be required. Moreover, it is established law that the mere establishment of a municipal police department of itself does not, Ipso facto, create liability on the part of the city in respect to a person who is the victim of a criminal attack (see Motyka v. City of Amsterdam, 15 N.Y.2d 134, 139, 256 N.Y.S.2d 595, 597, 204 N.E.2d 635, 637, 1965), in the absence of exceptional circumstances Schuster v. City of New York, 5 N.Y.2d 75, 180 N.Y.S.2d 265, 154 N.E.2d 534, 1958).

Tenants have also urged that section 2 of the Public Housing Law imposes a positive duty upon the Authority to furnish 'adequate, safe and sanitary dwelling accommodations for persons of low income', and that thereby adequate police protection must be provided by the Authority. However, in clarification of these salutary purposes it is to be observed that the conditions which the quoted objectives of public housing were designed to overcome were

'* * * insanitary and substandard housing conditions owing to overcrowding and concentration of the population, improper planning, excessive land coverage, lack of proper light, air and space, insanitary design and arrangement, or lack of proper sanitary facilities.' (Public Housing Law, sec. 2)

The State Constitution, Article XVIII, which furnished the constitutional basis for public housing in New York, has mandated that provision for low-rent housing, or the clearance, reconstruction and rehabilitation of slum areas, was for the purpose of eradicating 'substandard and insanitary areas.'

The terms 'safe' and 'safety', where used in a context dealing with deteriorated housing conditions and with the objects of legislation to correct and alleviate such substandard housing conditions, have been defined as being applicable to structural conditions, sanitary conditions, and the elimination of fire hazards, Adler v. Deegan, 251 N.Y. 467, 477, 167 N.E. 705, 708, 1929; Matter of New York City Housing Authority v. Muller, 270 N.Y. 333, 341, 342, 1 N.E.2d 153, 155, 156, 105 A.L.R. 905, 1936; Adamec v. Post, 273 N.Y. 250, 254, 7 N.E.2d 120, 121, 109 A.L.R. 1110, 1937; Matter of Murray v. LaGuardia, 291 N.Y. 320, 331--332, 52 N.E.2d 884, 888--889, 1943; Fruhling v. Amalgamated Housing Corp., 9 N.Y.2d 541, 548, 215 N.Y.S.2d 493, 497, 175 N.E.2d 156, 159, 1961). The question of providing police protection and safety from criminal elements has never entered into the problem of providing 'adequate, safe and sanitary housing.'

In a recent instance where the Legislature sought to meet the special problem of increased deterioration of housing conditions in New York City, it enacted Article 7--A of the Real Property Actions and Proceedings Law. In section 769 it is stated that a special proceeding may be maintained by tenants of a multiple dwelling 'for the purpose of remedying conditions dangerous to life, health or safety.' In an action brought by tenants under Article 7--A, where the tenants claimed, among other things, that their 'safety' was endangered by the landlord's failure to provide doorman service, the Civil Court of the City of New York held, in DeKoven v. 780 West End Realty Co., 48 Misc.2d 951, 266 N.Y.S.2d 463, 465, (1965), that the failure to provide doorman service for a multiple dwelling does not constitute a condition dangerous to safety within the intent and purport of Article 7--A. Accordingly, there is no substance to the tenants' contention that the use of the terms 'safe' and 'safety' in section 2 of the Public Housing Law, coupled with the discretionary power of the Authority to maintain a housing police department, imposes a duty upon the Authority under law to insure their safety, and thereby confers a corresponding right in the tenants to bring suit if they are not satisfied that the alleged duty has been properly discharged by the Authority.

The tenants claim that although there is no express provision in the lease made with the Authority to require the Authority to insure safety in project areas, such a covenant may be implied into the lease. In effect, the tenants request the Court to write an additional provision into the lease which the parties themselves have not inserted as part of their agreement. A unilateral expectation by a party to a contract cannot form the basis of a subsequent determination of failure of consideration in respect to that expectation. The Court cannot accomplish for the parties that which they did not do for themselves, (Morlee Sales Corp. v. Manufacturers Trust Co., 9 N.Y.2d 16, 19--20, 210 N.Y.S.2d 516, 517--519, 172 N.E.2d 280, 281--283, 1961; Raner v. Goldberg, 244 N.Y. 438, 442, 155 N.E. 733, 734, 1927) except where an 'unforeseen contingency' has intervened which clearly frustrates the expectations of the parties (Lion Brewery of New York City v. Loughran, 131 Misc. 331, 334, 226 N.Y.S. 656, 661, 1928, reversed on other grounds, 223 App.Div. 623, 229 N.Y.S. 216, 1928). If such a fundamental change in the law as to insure adequate police protection for tenants in public housing projects is to be effected, it is the function of the Legislature and not the courts to achieve such a fundamental change (Bliss v. Clark, 104 Misc. 543, 546--547, 172 N.Y.S. 112, 113--114, 1918; Campo v. Scofield, 301 N.Y. 468, 475, 95 N.E.2d 802, 805, 1950; Bright Homes, Inc. v. Wright, 8 N.Y.2d 157, 162, 203 N.Y.S.2d 67, 70, 168 N.E.2d 515, 517, 1960). Cf. Woods v. Lancet, 303 N.Y. 349, 354, 102 N.E.2d 691, 693, 27 A.L.R.2d 1250, 1951.

The Legislature has not been unaware of the need to rectify...