Callahan v Carey

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Callahan v Carey 2012 NY Slip Op 30400(U) February 21, 2012 Sup Ct, NY County Docket Number: 42582/79 Judge: Judith J. Gische Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] I . . .. . I 3 ...," I I , - [* 2] Suprerne Court of the State of New York County of New Yo&: IAS 10 - Robert Callahan, et. ai., DeeisionlOrder Plaintk, Index# 42582/79 Mot. S q . # 16 -against- Hugh I . Carey, as Governor of the State of New Yo&, et. ai. Defendants, Louise F. Eldredge, et. al., Plaintiffs, index # 42582/78 -again& Edward 1. Koch,a8 Mayor of the City of NewYork, et. al. Defendants. In the Matter of the Application of The Coundl of the City of New York, Petitioner, For a Judgment Pursuant to CPLR Artida 78 -againstThe Department of Homeless Services of the City of New York and Seth Diamond, Commlssioner for the Department of Hornelem Services o the City o New York, f f Raspondents, Hon. Judith J. Glsche: FILED [* 3] Pursuant to CPLR 221 9(a) the following numbered papers were considered by t court on these motions: k PAPERS NUMBERED Matlon Seq. # 016 (Index # 42682/79) OSC, SEI affirm dated 1l / l O / l I ....................................................................................... 1 SB affirm. Pursuant to CPLR § ? I O 1 dated 1111OM 1, PM affd, dated 11111, Dr.EZ affd. dated 1111 1, exhibb..i................................................................................. 2 AG affirm in Opp. Dated lU2811I, exhibb..................................................................... 3 SB affirm. Dated 1110112, exhib.................................................................................... 4 SB affirm dated 1/18/12, exhibits.................................................................................... S Mot Ssq. # 001 (Index # 403154/111) OSC, JPM afflrm dated 12/7/11, sxhib.......................................................................... 1 Notfag of Cross-Motion to Dismiss............................................................. ..;...................2 AG affirm. dated 12/19/11, exhlb~................................................................................. 3 StenographicMlnutes of hearlng dated I I1 011 1 1 Stenographic Minutes of hearing dated 11/2111f Stenographic Minutes of hearing dated 12/911I Stenographic Minutes of hearing dated 1/20/12 . . Upon the hmgoing papers the decision and order of the court is as folrbws: These related matten each challenge Procedure No.12400 of the New York Clty Department of Homeless Senrices (TlHS'), entitled "Slngie Adutts Eligibility Procedum"("SAEP"),which ms out a new application process to deternine whether t H " single adults seeking temporary housing assfstance (aometlmes T A )In the New York City Shelter syitem are legally eligible. As more f'ulty set forth belbw, this court ff nds that the SAEP was promulgated In violation of the public vetting pro- requirad by the Ctty Administrative P r d u r e Act ("CAPA7. Consequently, the SAEP is a nullity and may not be Implemented at thls tlm. In 1981, a Flnai Judgment by Consent was enterad in the case o Callahan v. f -Page 2 of 18- [* 4] Carey ( consent decree ). The consent decree requires the Crty defendants ( Cw) to provlde temporary shelter to eligible, single, homehss, adult men. By subsequent court decision, the provisions of the consent decree apply with equal force to eligible, single, homeless, adult women. See:=rem v. K M , 98 AD2d 675 (ld 1883). dept. On November 3,201 1, the Clty notified the plaintlff8 that DHS planned to implement the SAEP on November 14,2011. Plaintiff8 then brought this motion to enforce the consent decree, and obtain a prelhninary and permanent injunctlon against irnplmentatlon of the SAEP by the City. Plalntk not only claim that the substance of the SAEP is contrary to the Clty s obligations under the consent de-, but also that it was adopted by DHS in vlolation o CAPA. New Yo& Ctty Charter Q 1401, et. seq. f By separate Article 78 Proceeding ( Artide 78 Promeding ), the Council ofthe City of New York ( City Councii7, has atso mounted a challenge to the SAEP, claiming it was promulgated in vioiatlon of CAPA. The City has cross-moved to dlsmias the Article 78 Proceeding. On December 9,2011, the court conaolfdated for consldaration, the Callahan motion and the Article 78 Proceeding, but only insofar as they both raise CAPA challenges to the SAEP. In addition, on that date the court bifurcated the CAPA dispute, to be considered separately and before the court reaches any substantive challenges to the SAEP. Although the State o New York ( Stab3 is 8 named party in f the Callahan action, it has expressly represented to the court that it is taking no position in thk dispute. Through a series o agreements made in open court, the City is temporarily f forbearing from implementing the SAEP. Currently, the agreements on forbearance -Page 3 of 18- [* 5] extend though the next court date for this m a t h , which Is set forth later in this decision.' Dlscuulon Thsre is no dispute Jetween the partlea that, in aeklng to implement the SAEP, the City did not follow any ofCAPA'a procedural requirements. The City dalms that CAPA does not apply to the SAEP. If CAPA d m apply, then the SAEP may not be Implemented by DHS until it follows the express procedures requirsd for the adoption of a rub by a city agency. If CAPA does not apply, then DHS has the right to implement the SAEP, without any further process, subject still to a determination on the substantha challenges. Plaintiff8 and the City Council dalm that the SAEP b an exercise of rule making by DHS, implicating the protections of CAPA before ita adoptlon. The City argues that the SAEP d m not Involve rule maklng; but that even if It did, it is subject to exceptions expressly stated in CAPA. e Applicable L w CAPA I contained in Chapter 45 of the New York City Charter. Pursuant to s CAPA 91043, no City agency may adopt a rule without following express, rlgoroue procedures which ensure prior vetting by the City Council, the Corporation Counsel and the public. The pmceduma induds, but are not llmited to, publication and public hearing concerning the rufe prior to its adoption. According to the Charter Revision ' The parties agreed that regardless of the outcome In this declabn, the court should set et least one further court date, at which time the parties could addrew issues regardlng any need for a stay (Transuipt 1/20112 Hearing pp.86-67). m P ~ c 4 o f18- [* 6] Commission, CAPA's definition of a "rule" is 'to be m,nstrued broadly to accommodate the act's basic objecbiva." 2 Report of NY City Charter Rev Cmmn: Dec. 19S6-Nov. 1988, at 86. "CAPA's fundamental objective is to inform and gather input from the public on the development and promulgation of the myrlad of City agency rules that affect New Yorkers: to provide aecountabilrty and openner3a. 42 Charter Review, at 10-11 [fall 19881: NY Clty Charter Rev Commn Summary & Comments on Initial Proposals [summer 1088]; Lane, When la a Rule a Rub?, 3 City L, at 3.)* 1700 Yo6 / h o c . v -182 Misc.2d 586, (NY Co. Sup. Ct, 1989, Billings, J.). What wnstitutes a "rule" I defined In CAPA Q 1041, as it has been Interpreted s by case law. In general CAPA 5 1041.5 ddnes a rule as follows: 'Rule" means the whole or part of any statement or communication of general applicability that (i) implements or applies law o policy, or (ll) prescribes the procedural r requirements of an agency including an amendment, suspenslon, or repeal of any such statement or communidon lnmfar as pertinent to this inqulry, CAPA $1041.5(a) provides further: "Rule" shall fnclude, but not be limited to, any statement or communication which prescribes . , , (vi) standards for the granting of loans or other benalb. CAPA Q 1041.5(b) also expressly provides for certaln exceptions to what is consMered a "rule." The exceptions relevant to this decision am a$ foIIow8: 'Rule" shall not Include any . . .(i ) statement or communication whkh relates onty to internal management or personna of an agency which does not materially affect the rights of or procedures available to the public; [or] (If) form, instruction, or statement or communication of general pollcy, which in Itself has no legaf effect but Is merely explanatory;. . . -Page 5 of 18- [* 7] The definition of a rule under CAPA is consistent with the definition a rule under the State Administrative Procedure Act ( SAPA ) . Conaequently, legal authority Interpreting SAPA is persuastve and may be mlied upon in this couffs inquiry. Sea: S W t Vmdor Proiect v. Cltv of New Yo*, 10 Mlsc3d 978 (NYCo. 2005); j700 Yo* Assodatee v. KaskeI, supm CAPA 8 rule making process is mandated when an agency establishes precepts that m o v e Its discretion by dictating spmlfIc resub In particular circumstancs8. esus v. Robtt& 296 AD2d 307 (Iat 2002). Only a k e d general principle to Dept. be applied by an admlnlstrativa agency,wkhout regard to other facts and drcumstslnces relevant to the regulatory acheme of the statute it admlnlsters, constkutes a rule or regulation that must be formally adopted. v. Nnw York S& t Rept. of Matter of Roman Catholic Dlocew9 of A l b w 66 NY2d 948 (1Q85); Matter of 439 Ownem Corn, v, Tax Cornmn, O the CItv of New Yark, 307 AD2d 203 ( dept. 2003). Rules am not f I implicated whom there I the ability for ad hoc dedsion making (AI= Industries v, s Wanev,92 NY2d 775 [1QW1) or where ddalon makers are vested with elgn~cant discretion to independently exercise their professionalJudgment. Matter of M da ei of the S of N w YO r k V . sei m st -y 100 NY2d 854 (2003). Nor are rules implicated by Interpretative statements, or statements of general policy, that have no Mal effect. Childs v, Bana, 194 AD2d 221 (3d dept. 1903) Iv to app den 83 NY2d 479 w. (1 The Court of Appeals, however, has acknowledged that there is no clear brlght SAPA is that State Law that sets out procedures that must be fdllowed before the State Agency can adopt a rule. -Page 6 of 18- [* 8] line between a rule or regulation and an interpretathe policy. Cubas v, Matiner, 8 NY3d 81 1 (2007)('0ur ca8es show that there is no char bright line between a 'rule' or 'regulation' and an interpretive policy:..."). As a consequence, the Inquiries are necessarlly circumstance drlvon, where determinations turn on matters of degree where rules being generally broader and with more direct public impact, than Interpretative policies. Cubas v. Matinez, supm. n Az & l The SAEP is organized Into seven sections, mpectkrely antitled: Purpoae (&don I),;lnvaatrgation of Eiigiblltty (Sectlon 11); Ellglbiltty Criteria (Sectlon 111); Applicatlon and Eligibility Determination Process (Section IV); Agency Conference Regarding Denial of THA; (Section V); Fair Hearing (Sectlon VI); and Re-applicant Procedure (Section VII). It sets forth the standards by which DHS Will determine whether individuals who apply for temporary housing assistance are eligible. It provides that the requirements for eligiblllty are derived from the consent decree, New York State Soclal Services Regulation 18 NYCRR 9352.35 (%ate Regulaffon') and State Administratlvs Directives 84 ADM-20,96 ADM-20 and 05 ADM-07 (collacthrety "State Admlnistratiie Directives*). The SAEP states as part of Its purprns: ...DHS utflke this Procedure to detomlne whether an applicant for THA is an eligible homeless pemn. T l hs determination be baaed on an assessment of whether the applicant has 0 viable housing option where slhe can live even on a temporary basis and/or whether dhe possess sufficient financial resources to 88cum such houslng. ...The procedure alao sets forth the requirements with which appllcanta for shelter muat comply in order to receive THA. (Emphasis added) (SAEP Section I) a -Page 7 of 18- [* 9] shettef Certain factors are enumerated for DHS' consideratlan, includlng: [7 J "Available Housing"within which DHS will consider 'tenancy," 'overcrowdedlunsafe conditlons,"mdomestic violence,"and "health and eafety' and [2] "Financial Resources," I within which DHS wlli conslder "income"and "assets.* (SAEP Sectlon 111). Notwlthstanding language in the SAEP that the determination must be based upon the totality of circumstances and after consideration of factors, embedded wfthin the SAEP are cartaln crlteria that are outcome determlnatlve. The following are a few examples: The SAEP provides that "an indivMual mnnot elect to be hornel-...by not utllWng other ~ e s o u m obtain housing.' (SAEP to %don IIIA). Consequently, DHS has no discretlon to find someone ellglble for THA who has not utilized other r88ouTcB8 to obtain housing. Jlw SAEP provides fhat a -Page 8 of 18- [* 10] primary tenant's clalrn, oral or written, that the applicant can no longer reside in the vlabls housing option I not, by belf, sufficient to establish that the housing is no longer s available." (SAEP Section IIIA). Consequently, when DHS receives only 61 statement from the primary tenant that dhe can no longer m i d e in a particular apartment, it must deny the application. The SAEP provides that, with certain lirnhtlons, "residential treatment...deemed necessary by a qualM6d DHS staff person or third party evaluator shall be considerad an available housing option....pmvlded a bed can be secured." (SAEP Section IIIA) Consequently, when residentialtreatment i deemed necessary s and a bed Is available, DHS must deny the appllcaffon. The SAEP provMes that where there is no Imminent threat to health or aafety, if an applicant ha8 tenancy rights at any housing option, that residence All be deemed the viable housing optlon and the applicant will be found inellglble. (SAEP Section IIIA). Consequently, unlam certain exceptions apply, a flnding that an applicant has tenancy rights at any housing option mandates a finding of Ineligibility by DHS. The Application and Eligibility Determination Process contained in SAEP Salon IV provide8 that based upon the "Adult Eliglblllty Guldelinaa and the totality of drcumstsln~es surrounding the application, DHS eligibility specialists will make an eligibility recommendation to the Supervisor. (SAEP Section IVD). Notwithatending this broad language, there are still certain criteria that are outcome detemlnative in connection with any applicatfon made. Applicants are now required under the SAEP'to complete a Temporary Housing Application and an Eliglblltty Determinatlon Questionnaire that collects a one year housing history. Part of the application process requlrsa the applicant to sign a release "authorizingDHS to disclose and collect rnwlcal -Page9 of 18- [* 11] and other personal informatlon In conducting it$ etllgibility Investigation." (SAEP Section IV.B)? The SAEP expressly provides that "[a]pplicants who do not comply with the, applbtion process will be found ineligible b d on nonaoperation, unless the reawn for non-cooperatlon b mental or physical impairment as assmaad by a q u a m mental health or medical professional." (SAEP Section NB.).Consequently, unless the applicant falls within the exception, failure to complete the appilaation documents mandates a finding of ineligIblllty by DHS. Any single adult with on-hand assets in excess of $2,000 *must"utilize hidher re~source8 educe or eliminate hislher need for tor emergency shelter. If DHS determines that such asset8 exist,THA aiiglbili must be denied.' (SAEP Section 111.8). Analysis A plain reading of the SAEP makes it dear that R mandates certain results under certain circumstances. Contrary to the City's arguments, while DHS has certain discmtion in weighing factors before making .a finding of ellglbility for temporary housing, that discretion is not unfettered. Them are a considerable number of mandated outcomes which leave DHS wkh no discretion about whether to deny temporary houtsfng. While in some cases t h m are exceptions to outcomes, the exceptions do not make othamrk make a mandated outcome diacretionary. Thus, for ' o t a y to the City's position at oral argument, there is nothing that tailors the Cnrr information that an applicant ie required to provide to his or her particular circumstances. For example, a release to obtain medical information Is required from each and every applicant regardless of Ita relevance to the underlying application. 'If the a~sets not immediately available, DHS will meet the appllcant'a are Immediate need for shelter while conducting an Investigation to ensum that the resources do become available. -Page 10 of 18- [* 12] example, the failure to cooperate mandates a denial of temporary housing. While there is an exception if the applicant is suffering from a mental or physlcal impairment that affects his or her abltlty to cooperate, DHS is not fma to $Imply disregard the mandateid outcome where that applicant is not suffering from a mental or physical Impairment In fact, the investigation procees to determlna If someone f b wtthln the exception 1 h l f 3 a rigomus p m s . Becauw them are mandated outcomes In the W P , the court holds that it is a rule wlthfn the meaning of CAPA The court rejects the City's argument that the SAEP vesb DHS with sufficient diacretton to make declslons to fall outside the definltlon of a r l under CAPA ue In a closely related argument, the Clty claims that the SAEP 1 not a rule 8 bemuse it is not a statement of general appllcation. This argument is also rejected. As dated by Justice Bllllngs in 1700 York Assoe, v Kaskel supra, in connection with CAPA: A statement 'of geneml applieabilv is "a fixed, general prlnciple to be applied by an admlnistrative agency wlthout regard to other facts and clrcurnstances relevant to the regulatory scheme." (Matter of Roman Catholic Diocese v New York State Dept. of Health, 66 NY2d 048, Q51 ,[1085".) The statement need not regulate the general public; if a policy Is to be "invariably applied across-the-board" to the segments of the populetlon wfthin Zts ambit 'without regard to lndlvldual circumstances or mftlgatlng factors ...as such [the pollcy" falls plainly within the deflnttion of a ' I U ~ . " (Matter of ' Schwartfgum v Hartnett, 83 NY2d 296,301 [lQW"; see also, Matter of Corder0 v Corbisiero, 80 NY2d nl,772 [7 g92".) The SAEP I generally applicable to all people who apply for THA and rnr Et be s utilized at all DHS intake facilities. Ita appllcabllfty Is not a suggestion or a request, it irr an a m $ the board requfrement. The fact that here may dements of discretion In -Page 11 of 18- [* 13] connection with determinations on indMdual applications does not negate the SAEP's general applicability because the discretlon does not involve slmply disregardlng the SAEP. The court, themfore, condudes that the SAEP meets the general applicaMllty requirement. The Ctty also argues that the SAEP falls wlthin the CAPA axmptlons to a rule b u s e it has no m l effect CAPA §1041.5(b). In making this argument, the City a dalms that the SAEP is only an embodiment of requimments containad in the State Regulation and relevant S a e Administrative Directives, with some additional details. tt Thus, the Cky argues that the SAEP has no legal effect because it has lmplemenb the same legal obllgations that am othsrwlse contained in exlstlng law. In Cub@ v, Martinez, (8 NY3d 61I[20071) Court of Appeals held that, when the the Department of Motor Vehicles ('DM"') speclfled the documentary proof required to obtaln a driver's llcense where the applicant was not eligible for a social securfty number, the D W 8 action was consistent wkh a duty Imposed by a pre-existlng State regulation and, therefore, not subject to SAPA. In 80 holding, the court masoned that the requirement for certain documents did not impose any new obllgatlon on applicants or mate or deny substantive rights. Whlle Cubas v. MartIn=, supra, dlswsses a limited exeeption to the otherwise broad deflnttlon of a rule,it still must be read with due regard for the fundamental principle of admfnktratlve law, that agencies can only exercise those powers expmsly debated to it by the legblature, together with those required by nsqssary implicatlon. Matter of Beer Garden v. N m Y m m &thorthr, 79 NY2d 266 (1982 ). In every drcumstanw, where a rule is adopted by a Clty agency, there must necessarily be some prlor anabllng laws, @tatUtes and/or -Page 12 of 18- [* 14] rqulatlons concerning the same matter. Exceptions cannot be read 80 broadly a$ to eviscerate the mqulmmnts of CAPA, and the existence of enabling law, in bdf,is not suficlent to justify a legal mncluslon that the ensuing statement or pollcy has no legal effect. The exeption must be strictly limited to a statement or policy that sMctly interprets an exlstlng statute or just fllh in of the interatlcaa. Q,&aa v. M a r t j m supm (Ciparidt J. Dissenting opinion). Applying these standards to the SAEP, the court finds that tt is not aimply a strict interpretation of the existing State Regulation or the State Administrathe Dkctivm, wfth a filling in of the interstices. The court holds that the SAEP does not ftt wtthin &le CAPA exception for statements or polides having no legal effect. Implicit in the City's argument, that because the SAEP duplbtes the requirements of the State Regulation and State Administrative Directives, the SAEP hae no legal effect, an acknowledgmentthat in the absenm of such State requirsmants, ia the SAEP does have legal eflect. Even wtthoM any impklt acknowledgment, h m v e r , such condusion is easily drawn. The application of the new ellglbIlity proces8 ha8 the effect of datermlning who gets THA pursuant to the consent decree and existing law. Public Statements by DHS Comm'kloner Seth Diamond confirm that the SAEP is expected to reduce the number of people who were previously being accommodated by the shelter system by about 10% (and possibly more), at a projected cost reduction o f $4,000,000 per year. The court acknowledges that there am many consistencies between the State Regulation and the State Administrative Dlmctlves and the SAEP. Consfsbncy, however, Is not the same as constituting a "Metinterpretation"and the SAEP ImpQesw -Page13of 18- [* 15] many new obligatlons on applicants, with 0 coneomitant mation and denial of substantive rights. In addressing the City's argument, the State Regulation and the State Administrative Directives, need to be h k e d at separately. The State Regulation contains a general requirement that an applicant Gooparate and complete an assessment, and that the failurm to do so mandates a denial of the application for THA, unless that failure is due to mental or physical impairment. 18 NYCRR §352.35(~)(1). The State Regulation Is far too broad a pronouncement to exempt the highly detailed requirements of the SAEP from CAPA. The State Administrative Dlractlves are more detailed thatn the State Regulations, but they are still not as datalid as the requimants and procedures set forth in the SAEP. The State Admlnbtrrrtfve Directives provide that THA is only available to persons who can establish that they are without houslng at the time of , application. They place the burden on applicants to establish their need for THA by dear and convincing evidence. The State Administrative Directiies further provide that persona who resided in their own or shared houslng immediately prior to the time of application will be presumed to not be in need of THA and that a statement by a primary tenant, that the family can no longer reside in shared housing, is not by hew, sufficient p r d that houslng is no longer available. The State Admlnlstrathre Dlreetlves alao indicate that the failure to cooperate warrants a denial of temporary housing. Although the State Adminbtmtlvo Directhe8 refer to an assessment of eligibllky, neither tfw State Regulation nor the State Administrative Dlrectkrea set out a specMc initial vetting process for determining aligibiltty. They do not mandate any -Page 14 of 18- [* 16] particular application, nor do they mandate the slgning of rele- for private information that may have no bearing on any assessment of eligibility. (e.g..: medical releases). They do not provide the same level of detail at3 the SAEP regarding what is conskierad a viable housing option that would make an applicant ineligible for THA. Unlike the SAEP, they contain no expma provlerlons that suppodlve housing and/or residential treatment programs, under certain drcumstances, constitute available housing options that make an applicant inefiglblefor THA. Unlike the SAEP, they contain no tule that "tenancy rights' at any housing option will bo "deemed" a viable housing option, requiring a flndlng of ineliglblllty Irr the absence of an "Immlnent threat to haalth or safety,' Certain addltlonal considerations support the courfs decision that the State Regulatlon and the State Administrathe DIrecthw do not warrant a conclusion that CAPA should ba dispensed with. The State Regulation and State Administrative Directhres have been in place for no less than 15 years. The procedums #t out In the s SAEP, however, are new. If the SAEP i merely a eMct Interpretation of the State Regulation and Sfate Administrative Dimdives, the pmcedurw would have been in place for at leaet the last 15 years. The State does not join in the Clty's argumenb. Notwithstanding that the City sought State approval for the SAEP, the State would only represent that the SAEP Is not inconsistent with state law. By letter dated November 2, 2001, Maria T. Vidal, General Counsel to the Office of Temporary and Dlsabllfty Assistance ("OTDA") sWd: "Iam writing In response to your request for approval of the Department of HornelSenrices' (DHS) Single Adub Eligibilrty Procedure (the "Procedure").....The [OTDA] has -Page 15 of 18- [* 17] reviewed the P r d u r e and determined that it is not inconalstent with State law or regulationa." In a subsequent letter, dated November 9,2011, from Executive Deputy Commlssioner Elizabeth R. Berlin of OTDA, to DHS Commissioner Seth Diamond, sha states: "Any suggestion that the [OTDA] epproved [DHS] shelter eligibiltty procedure for single h o m e k s a d u b is inaccurate. QTDA has not commented on the substanthe merit8 of the proposed change, but instead determinated that the proposal was not lnconsirrtent with State law." The State's position that the SAEP is "not inconsistent"wlth State Law and regulations does not support the City's argument that the SAEP is a strict interpretatlon of State law, filling in intamtlcm, as is required for the SAEP to qualify as an exemption from public vetling under CAPA. For these reasons, the court finda that the SAEP should have boen promulgated a8 a rule, consistent wzth the requirements of CAPA. The Ct' failum to do 89 renders tys the SAEP a nullity. mh v, Taxi & Llmou&in Comm. of the C h of New Yo* ,202 c l e AD2d 368 (1" dept. 2001). Remainin4 Procedural Since the court has determined the SAEP is a nulltty, the, plalntlffs In m a n v , Carev, (index # 4258WO)do not require any further relief on their motion. Their addMona1 arguments, regarding whether the SAEP violates the substance of the consent decree, are acmdernlc until such tlms 88 the SAEP I properly vetted under s CAPA. The parties in Caflahan v. Carev agreed to one further court appearance In -Page 16 of 18- [* 18] connection with plaintiffs' motion. The next court date is, therafom, set for March 16, 2012 at 9:30a.m. In connection with the Artide 78 Proceeding, the motion to disrnlss is denied. Procsdurally, the City has the rlght to Interpose an answer, notwithstanding that the denlal of the motion to dlsmias would appear to finally msohre all the ~seues.The Cky is, therefore, directed to interpose It8 answer on or before March 9, 2012. A new return date on the Article 78 Proceeding is set for March 16,2012 at 8 3 0 a.m. At that time the parties should be prepared to daddress the issue of whether the service of the a n m r leaves any further Issues to be msolved by the court. CONCLUSION In accordance herewith it i hereby: s ORDERED that the motion in Callahan v. Carey (index # 42682n9) is granted to the extent of declaring Procedure No.12400 of the New York City Department of Homeless Senricea, entitled 'Single Adub Eligibility Procedure," a nullity, and tt I s further ORDERED that the Ct' cross -motion to dismiss the M d e 78 P r d i n g h iys denlad and It f further 5 ORDERED that the Cy i directed to interpose an answer to the petition in the i s t Article 78 Proceedhg on or before Mar& 9,2012, and It Is further ORDERED that a court conference in Callahan v. Carey (index # 42582/779) is set for March 10,2012 at 0:30 a.m. and it Es further -Page 17 Of 1 8 ~ [* 19] ORDERED that a new return date on the Artlcle 78 Proceeding 1 set for March 8 < 16,2012 at 9:30 a.m. and it i further s ORDERED that any requested relief not othennrlse expressly grantad hereln I s denied, and tt is furlher ORDERED that this c o n s t i s the decision and order of the court. FILED Dated: New York, New Yo& February 21,2012 SO ORDERED: FEB 2 2 2012 IEWIQRK COUNTY CLERK'S OFFICE -PQC 18 of 18-

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