Silberman v. Biderman

• Decision Date: 17 April 1990
• Docket Number: No. CV-89-1736 (RJD).,CV-89-1736 (RJD).
• Citation: 735 F. Supp. 1138
• Parties: David SILBERMAN, Fanny Silberman and Stephen Jay Silberman, Plaintiffs, v. Abraham BIDERMAN, Commissioner of the City of New York Department of Housing Preservation and Development, the City of New York Department of Housing Preservation and Development, the City of New York and Cadman Towers, Inc., Defendants.
• Court: U.S. District Court — Eastern District of New York

735 F. Supp. 1138

David SILBERMAN, Fanny Silberman and Stephen Jay Silberman, Plaintiffs, v. Abraham BIDERMAN, Commissioner of the City of New York Department of Housing Preservation and Development, the City of New York Department of Housing Preservation and Development, the City of New York and Cadman Towers, Inc., Defendants.

No. CV-89-1736 (RJD).

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

April 17, 1990.

COPYRIGHT MATERIAL OMITTED

Jerold W. Dorfman and Anthony Y. Cheh, Faust, Rabbach & Stanger, New York City, for plaintiffs.

Andrea Roschelle, Corp. Counsel of the City of New York, for defendants Abraham Biderman, the City of New York Dept. of Housing Preservation and Development, and the City of New York.

Ezra Goodman, Szold & Brandwen, New York City, for defendant Cadman Towers, Inc.

MEMORANDUM AND ORDER

DEARIE, District Judge.

Plaintiffs challenge housing regulations promulgated by the City of New York Department of Housing Preservation and Development ("HPD") and applicable to Cadman Towers, Inc. ("Cadman Towers") on the grounds that the regulations violate the Due Process, Equal Protection and Takings Clauses of the Fourteenth Amendment as well as 42 U.S.C. § 1983 (1982); they also mount state-law claims based on Article 78 of New York's Civil Practice Law and Rules, N.Y.Civ.Prac.L. & R. §§ 7801 et seq. (McKinney 1981), and on the New York State Constitution. BACKGROUND: Plaintiffs David Silberman ("David") and Fanny Silberman ("Fanny") are a married couple in their eighties. Plaintiff Stephen Silberman ("Stephen"), age 26, is their grandson. David and Fanny are shareholders of Cadman Towers and have resided there for many years. Defendant Cadman Towers is a cooperative housing company organized under Article 2 of New York's Private Housing Finance Law, N.Y.Priv. Hous.Fin.Law §§ 10-37 (McKinney 1976) (the "Mitchell-Lama Law"), financed by loans from New York City and, pursuant to Sections 23 and 32 of the Mitchell-Lama Law, N.Y.Priv.Hous.Fin.Law §§ 23, 32 (McKinney 1976), is subject to regulation by HPD.

Approximately four years ago, Stephen moved in with David and Fanny, apparently motivated in part by David's poor health. David and Fanny would customarily spend the winter months in Florida, during which time Stephen would live alone in their apartment. In November of 1987,¹ while in Florida, David suffered a severe stroke, apparently his third; as a result, he has not been able to travel back to New York, and Fanny has remained in Florida with him. While David is confined to a wheelchair and has significant after-effects of his stroke, his prognosis is guardedly optimistic, and he hopes to return to New York in the not-too-distant future.

HPD has promulgated regulations (the "Regulations") applicable to housing companies subsidized by New York City pursuant to the Mitchell-Lama Law, including Cadman Towers. Pursuant to Article II, Section 15 of the Regulations, a tenant/cooperator may "co-occupy" an apartment with a person other than another tenant/cooperator, provided he or she first obtains written permission from the housing company and from HPD.² As a general matter, prior to moving in, the occupant must execute an occupancy agreement in a form approved by HPD. The situation is somewhat different for members of the "immediate family"³ of a tenant/cooperator. No permission is required to co-occupy an apartment with a spouse or minor child; for parents, or children who have reached their majority, however, prior written permission is required. The record does not reveal whether plaintiffs applied for permission prior to Stephen's moving in; however, he has lived there for a number of years during which time Cadman Towers has not challenged his occupancy.

The Regulations require that each tenant/cooperator and each occupant (whether or not a member of the tenant/cooperator's immediate family) submit certain financial information on an annual basis; if rent or maintenance charges are based on income, the income of the occupant will be included in the calculation. Plaintiffs have for the last four years submitted reports to Cadman Towers containing information about Stephen's income.

Article VI, Section 3 of the Regulations provides that a member of the immediate family of a tenant/cooperator may become a co-owner of shares if (i) the individual has been a bona fide resident of the apartment for at least two years, during which time the apartment was such individual's primary residence, (ii) the individual's income has been included in income affidavits filed annually by the tenant/cooperator, and (iii) both the individual and the shareholder intend to remain in joint occupancy. Plaintiffs claim that for several years they have attempted to have Stephen listed as a co-owner of David and Fanny's shares in Cadman Towers, and to have Stephen's name added to their occupancy agreement. Plaintiffs have submitted documentation regarding one such request, in 1988; this was rejected on the ground that HPD's regulations do not permit grandchildren to become joint owners of their grandparents' co-op shares. See Exhibit F to Plaintiffs' Motion for Preliminary Injunction.

In March of 1989 Cadman Towers commenced proceedings to evict the Silbermans on the grounds that (i) David and Fanny were no longer using the apartment as their primary residence⁴ and (ii) Stephen was illegally occupying the apartment.⁵ In early May of 1989 plaintiffs were served with a notice that a hearing had been scheduled in this matter before an HPD Hearing Officer for June 1, 1989. Plaintiffs brought this action on May 25, 1989, by way of an order to show cause. On June 13, 1989, this Court approved a stipulation by which the parties agreed that the HPD hearing would be adjourned until plaintiffs' motion for a preliminary injunction was determined. On July 14, 1989, HPD cross-moved for dismissal. The parties have agreed that the plaintiff's motion should be treated as a request for a permanent injunction; thus the merits of plaintiff's constitutional claims are now before the Court.

DISCUSSION

1. Due Process: Plaintiffs argue that the Regulations, by excluding grandchildren such as Stephen from the definition of "immediate family", violate the Due Process Clause of the Fourteenth Amendment in that they impermissibly intrude on the ability of the Silbermans to maintain their integrity as a family. In support of their argument, plaintiffs cite Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977). In that case, the Supreme Court struck down a city ordinance which limited occupancy to "family" members, defined "family" in such a way as to exclude a grandson from his grandmother's "family", and criminalized violations of the ordinance.

Moore is part of a long tradition insulating the "private realm of family life", Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944), from intrusive regulation by the state. The Supreme Court has repeatedly made it clear that activities which are fundamental to the existence and integrity of families and their ability to "inculcate and pass down ... their most cherished values", Moore, 431 U.S. at 504-05, 97 S.Ct. at 1938-39, can only be regulated if they stand up to a careful examination of "the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation". Id. at 499, 97 S.Ct. at 1936.⁶ As Moore has made clear, the protection accorded the "family" under the Due Process Clause is not limited to members of the nuclear family: "the tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition." Id. at 504, 97 S.Ct. at 1938.

The question for this Court, therefore, is twofold: whether HPD's Regulations interfere with any right of plaintiffs which is so fundamental to the integrity of their family as to warrant the strict scrutiny applied in Moore and, if not, whether the Regulations otherwise run afoul of the standards generally applied under the Due Process Clause in cases not involving fundamental interests.⁷

In this case, plaintiffs' interests simply do not fall within the scope of Moore or any other case in the tradition of which it is a part. It is apparent that the Regulations do not and have not prevented Stephen from living with his grandparents; indeed, as defendants have pointed out, the only obstacle to their living together is David's and Fanny's continued presence in Florida. Further, defendants have conceded that if David and Fanny were to return to New York, or if HPD were to determine that New York is still David's and Fanny's primary residence, then Stephen would be able to continue to live in the apartment, albeit not as a co-owner. In view of this, the question is whether those provisions of the Regulations which prevent Stephen from becoming a co-owner constitute an "intrusive regulation of the family", Moore, 431 U.S. at 499, 97 S.Ct. at 1935, warranting heightened scrutiny. The Court does not believe that they do. While the family is given significant protection under the Constitution, this by no means immunizes it from reasonable state regulation. Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944); Runyon v. McCrary, 427 U.S. 160, 177-178, 96 S.Ct. 2586, 2597-2598, 49 L.Ed.2d 415 (1976). In essence, Moore and cases in the same tradition act as a check on the ability of the state to interfere with activities whereby families "inculcate and pass down ... their most cherished values", Moore, 431 U.S. at 504-05, 97 S.Ct. at 1938-39. Unquestionably, the availability of a subsidized apartment is of great value to plaintiffs. However, whether David and Fanny can pass that apartment to Stephen, or whether he can obtain an interest in it, merely raises a question of the right — or lack...