Callahan v Carey

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Callahan v Carey 2012 NY Slip Op 30405(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] . 1 I [* 2] Supreme Court of the State of New York County of New York: IAS 10 - Robert Callahan, et. at., Plaintms, Index# 42582/79 Mot. Seq- # 18 -against- Hugh L. Carey, as Governor of the State of New York, et. al. Defendants. # . Louise F. Eldredge, et. al., Index # 42582/79 Plalntlffs, -against- FILED Edward 1. Koch, as Mayor of the City of New York, et. al. Defendants. FEB 2 2 2012 NEW YORK COUNTY CLERK S OFFICE In the Matter of the Application of The Council of the City of New York, Petitioner, For a Judgment Pursuant to CPLR Article 78 -againstThe Department of Hornbless Services o the f Cky of New York and Seth Diamond, Commissioner for the Department of H o r n a k Servfcm of the Clty o New York, f Respondents. n Hon. Judlth J. Bische: -Page 1 of 18- Indsx # 40315411I Mot. Seq. kc 01 [* 3] Pursuant to CPLR 2219(a) the followlng numbered papers were conaidered by the court on these motions: PAPERS NUMBERED Motlon Saq. # 016 (Index # 42682l73) OSC, SB affirm dated 11/10111 ....................................................................................... 1 SB affirm. Pursuant to CPLR g l l O l dated 11/10/11, PM affd. dated 11/11, Dr. EZ affd. dated 1l/I exhibits.................................................................................... 2 I, AG affInn in Opp. Dated 12/29/1I exhibits ....................................................................,3 , SB affirm. Dated 1IlOl12, exhib~..........,.......................................................,...,............ 4 SB affirm dated 1119112, exhibits....................................................................................5 Mot Seq. # MI1 (Index # 4 O S l W I l ) OSC, JPM affirm dated 12/7/11, exhib~....................,,...........................,....................... 1 Notice of Cfoss-Motion to Dhmiss................................................................................... 2 AG affirm. dated 12/18/11 exhibiEs................................................................................ .3 . Stenographk Minutes of hearing dated 1?/-lO/lI Stenographic Minutes of hearing dated 11/21/11 Stenographic Minutes of hearing dated ?2/9/11 Stenographic Minutes of hearing dated 1120112 - __ __ Upon the hmgoing papers the decislon and order of the court is as bllows: These relatad matters each challenge Procedure No.12400 o the New York f City Department of Homeless Services (OIDHS"),entitled 'Single Adults Ellglbility Procedure" rSAEP7, which s t out a new application process to determine whether es single adults seeking temporary housfng wlatance (sometimes THA') in the New York City Shelter system are legally ellglble. As more fully set forth below, this court finds that the SAEP was promulgated in violation of the public vetting process requlred by the City Administrative Procedure Act ("CAPA"). Consequently, the SAEP is a nulllty and may not be implemented at thh time. ,Procedw~l osture of thearrent Di D Before the Courf P $ m In 1981, a Final Judgment by Consent was entered in the case of Callahan v. -Page 2 of 18- [* 4] Carey ( consent decree ). The consent deem requires the Clty defendants ( City )to provide temporary shelter to ellgible, single, homeless, adult men. By subsequent court decision, the provisions of the consent decree apply with equal form to eligible, single, homeless, adult women. See:-a v. Koch, fl8 AD2d 875 (1 dept. 1983). On November 3,201 1, the Clty notilied the plaintiffathat DHS planned to lmplsmernt the SAEP on November 14,2011. Plaintiffs then brought this rnotbn to enforce the conaent decree and obtain a prellrnlnary and permanent inJunctionagwhst f implementation of the SAEP by the City. Plaintiffs not only claim that the substance o the SAEP is contrary to the Clty s obllgaljons under the consent decree, but also that It was adopted by DHS in violation of CAPA. New York Crty Charter Q 1401, et. seq. By separate Article 78 P d i n g ( Article78 ProcoAingT, the Councll o the f City of New York ( City Council ), has also mounted a challenge to the SAEP, claiming it was promulgated in violation of CAPA. The Cky has cross-moved to dismiss the Article 78 Proceeding. On December 9, 201 1, the court consolidated for conslderdon, the Callahan motion and the Artfcls 78 Proceeding, but only insofar as they both raise CAPA challenges to the SAEP. In addMon, on that date the court bifurcated the CAPA dispute, to be considered separately and before the court reaches any substantive challenge8 to the SAEP. Although the State of New York ( State )I a named party In s the Callahan action, it he8 expressly mpresented to the court that it ia takfng no position in this dispute. Through a series of agreements made in open court, the City Is temporarily fo-rlng from Implementing the SAEP. Currently, the agmements on forbearance -Page 3 of 18- [* 5] extend though the rtext court date for this matter, which is set forth later in this decksfon.' Di8cuuion The Nature of the n u There Is no dispute between the parties that, In saeklng to implement the S M P , the City did not foliow any of CAPA'a procedural requirements. The City claims that CAPA does not apply to the SAEP. If CAPA doe8 apply, then the SAEP may not be implemented by DHS until it folbws the e x p m procedures required for the adoption of a rule by a city agency. if CAPA does not apply, then DHS has the dght to implement the SAEP, without any further process, subject still to a determination on the substantive challenges. Plaintiffs and the Ctty Council claim that the SAEP I an s exerclse of rule making by DHS, lmpllcathg the protections of CAPA before its adoption. The City argues that the SAEP does not involve rule making, but that even if it did, It I subject to exception8 expressly stated in CAPA s CAPA is contained In Chapter 45 of the New York Cky Charter. Pursuant to CAPA 51043, no City agency may adopt a rub without followlng express, rigorous procedum whlch ensum prior vetting by tho City Council, the Corporation Counsel and the public. The procedures Include, but am not limited to, publieation and public hearing concerning the rule prior to its adoption. According to the Charter Revision The parties agreed that regardless of the outcome In this decision, the court should set at least m e further court date, at whlch time the parties could address Essuea regarding any need for a stay (Transcript 1120/Q Hearing pp.88-67), -Page4 of 18- [* 6] Comrnisslon, CAPA'a definltlon of a "rule"k 90 be construed broadly to accommodate the act's bask objedves." Report of NY City Charter Rev Commn: Dec. 1986-Nov. 2 1888, at 80. "CAPAs fundamental objective'is to Inform and gather Input from the public on the development and promulgation of the myriad of Clty agemy rules that affect New Yarkers: to provide accountablltty and openness. (2 Charter Revlew, at 10-1 I[fall 10881; Wf City Chsrter Rev Commn Summary & Comments on Initla1 Proposals [summer 19881; Lane, When I a Rule 8 Rule?, 3 City L, at 3.)" 1700 Yo& s Assac. a k e l . 182 Misc.2d 586, (NYCo. Sup. Ct.,1999, Billings, J,). What constitutes a 'rule" is doflned in CAPA 5 1041, as it has been interpreted by caw law. In general CAPA 5 1041.5 defines a rule 88 follows: "Rule"m a n s the whole or part of any statement or communication of general applicabillty that (i) implements or applies law or poky, or (ii) prescribes the procedural requirements o an agency Including an amendment, f suspension, or repeal of any such statement or communication Insofar as pertlnent to this inquiry, CAPA 8 1041S(a) provides further: "Rule"shall include, but not be limited to, any statement or communication which prescribes . . (vil) standards for the granting of loans or other benefits. . CAPA 5 1041.5@) also expressly provides for certaln exceptions to what b considered a 'rule." The exceptions relevant to this deckion are as follows: "Rule"shall not include any . , .(i ) statement or communication whlch relatea only to internal management or personne of an agency whlch does not materially affect the rights of or procedures available to the public; [or] (ii) farm, Instructkn, or statement or communimtlon of general policy, which in Itself has no legal effect but I merely s explanatory; . . . -Page 5 of 18- [* 7] The definition o a rule under CAPA fa consistent with the deflnltion a rule under f the State Administrative Prooedum Act ("SAPA?? Consequently, legal authodty interpreting SAPA la persuasive and may be relied upon In this coutt's Inquiry. See: ndor Proiect v. Cltv of New Yo*, 10 Miac3d 978 (NY Go. 2006); 1700 YO^ supra, CAPAs rule making process is mandated when an agency establishes precepts that remove its discretion by dictating s p e c k reeults in particular circumstances. BbJeaus v, Rot>adg, 298 AD2d 307 (1" Dept. 2002). Only a fixed general prindpk to ba applied by an adrninlstratlve agency, without regard to other facts and clrcumstances relevant to the regulatory scheme of the statute it administers, constitutes a rule or regplation that must be formally adopted. Y. Matter of Rgman Catholic Diocase of Albany New York @ate Dept. of Hefllth, 66 NY2d 948 (lQ85); r of 439 Owners Corn, v, Jax Cornmn, Of the City of New Yo* 307 AD2d 203 (1" dept. 2003). Rules are n d implicated where there is the ability for ad hoc decialon rnaklng (Aca Industries v, Qeianev,g2 NY2d 775 [lSSS 1) or whew decision makers are vested with slgnMcant d i m t l o n to Independently exercise thefr professional judgment. Matter of Madleal Socletv of the State Qf New Yo& v, Sen'Q,100 NY2d 854 (2003). Nor am rules lrnpllcated by interpretathe statements, or statements of general poky, that have no legal effect. v. Bane, 194 AD2d 221 (3wdept. 1993) Iv to app den 83 NY2d 478 (1994). The Court of Appeals, however, bas acknowledged that there I no clear bright s ' S P A is that State Law that sets out procedures that must be followed before the State Agency c8n adopt e rule. - P ~ 6 of 18c [* 8] line between a rule or regulation and an interprstative pollcy. Cuba8 v. Ma 8 NY3d 81l(2007)( 0ur cases show that there is no dear brlght line betwean a rule or regulation and an interpretive poilcy:... ). As a consequence, the inquiries are neosasarily circumstance driven, where determhations turn on matters of degree where rulea being generally broader and with mom dlmd public fmpact, than interpretative pOkk8. W v .M m supra. Rm l w T e SAEP is organized into seven aectlons, rarrpectively entitled: Purpose h ( W o n I);lnveatlgation of Eligibility (Section 11); Eiigibiitty Criterfa (Section 111); Application and Eligibiltty Determlnaffon Proceas (Sedon IV); Agency Confemnce Regarding Denial of THA; (Sectlon V); Fair Hearing (SectionVI); and Re-appllcant Procedure (Section VI1). It sets forth the standards by whlch DHS Mil determlne whether individual8 who apply for temporary housing assistance am ellgible. It providw that the requirements for eliglbillty are derived from the consent decree, New York State Social Services Regulation 18 NYCRR 5352.35( State Rqulatlon~ State and Administrslbe Dimctivm 94 ADM-20,W ADM-20 and 06 ADM-07 (collactkreiy State Administrative Diredves7. The SAEP states as part of its purpose: ...DHS utlllze this Procedure to determlne whether an applicant for THA b an eligible homerleas person. This determinationflbe based on an aswsrnent o whather f the applicant has a viable houslng option where she can live even on a temporary basis and/or whether she possess sufficient flnanelal m u r c B 8 to secure such housing. ...The procedum also sets forth the requirements with which applicants for shelter muatcornply in order to rowhe THA. (Emphasis added) (SAEP Section I) -Page 7 of 18- [* 9] DHS fa required to Investigate an applicant's eilgibilw. A determination is then made based upon the "ttalrty of the applicant's circumstances,with an analysis of each applicant's situation in accordance with all relevant factors including those enumerated in Saction 111. .." (SAEP Section IIA). An applicant is mquired to cooperate by providing all Information and documentation necwmary to determtne eligibility. Without a valid excuse, the failure to produce documentation constitutes a fallum to cooperate. When an applicant fails to cooperate in completing the 88semmmt, than the application for THA must be denied. The onIy exception is when such failure Is due to a "vodfld mental or physical incapacity.' (SAEPSection IIB). In the context of sllgibllily criteria, the SAEP states that the determination will be baaed on the "totality of the circumstance8 underlying each individual's application for shelter." Certain factors are enumerated for DHS' considsratlan, including: [71 'Available Housing' within whieh DHS will conslder "tenancy,"'overcrowddunsafe conditions,' 'domestic vlo!ence," and "health and safety' and 11 "Financial Resources," 2 within which DHS will coneider "income"and "assets.' (SAEP Section 111)Notwithstanding language in the SAEP that the determination must be based upon the totalfly of circumstaness and after consideratlon of factors, embedded within the SAEP am certain crttsrla that am outcome determinative. The following are a few examples: The SAEP provides that *an individual cannot elect to be homele#...by not utllhng other resources to obtain housing." (SAEP Section MA). Consequently, DHS has no discretion to find someone dlgible for THA who has not utilized other resources to obtain houalng. The SAEP provides that ' a -Page 8 of 18- [* 10] primary tenanrs claIm, oral or m e n , that the applicant can no longer mide in the viable housing option I not, by hlf,sufficient to astebllsh that the housing is no longer s available." (SAEP Section IIIA). Consequently, when DHS receives only a statement from the primary tenant that Slhe can no longer reaide in a partkular apartment, It must deny the application. The SAEP provides that, WWI certain limitations, 'residential treatment..deemed necessary by a qualified DHS stafF person or third party evaluator shall be considered an available housing option....pmvided a bed can be securwd." (SAEP Section IIIA) Consequsnt!y, when residential treatment is deemed neomsary and a bed is available, DHS must deny the applieatlon. The SAEP provides that where there is no Imminent throat to health or safety, if an applicant has tenancy rights at any houslng option, that residence will be deemed the viable houslng option and the applicant will be found ineligible. (SAEP Sectlon I11A). Consequently, unless certain exceptions apply, a flndlng that an applicant has tenancy rights at any housing option mandates a flnding of ineligibility by DHS. The Application and Ellgibllity Detennlnation Process contained In SAEP Sectlon IV provides that based upon the "Adult Eligibility Guidelinm and the totalky of clrcumstances surrounding the application, DHS allgIbifily apecialists will make an eliglblltty recommendatlon to the Supervisor. a (SAEP Section IVD). Notwtthstanding thls broad language, them are stlll certain dterla that are outcome dotarminative In connection with any appliceffon made. Applicants are now required under the SAEP to complete a Temporary Housing Application and an Eljgibility Determination Quastionnalre that collects a one year housing history. Part of the application proease requires the applhnt to sign a release "authorlring DHS to disclose and collect m e d i d -Page 9 of 18- [* 11] and other personal information In conducting Its eligib?llty investiatlon." (SAEP Section IV.B).' The SAEP expreplsly provides that "[a]pplicantswho do not comply wlth the application process will be found ineligible based on non-cmperation, unless the reason for non-cooperation is mental or physical impairment as 88868886 by a q u a l f i mental health or medical profsssionaL* (SAEP Saction IVe.). Consequently, unissa the applicant falls wlthin the exception, failure to complete the appllcatlon documents mandates a finding of Ineligibility by DHS. Any single adutt with on-hand assefs in exmiss of $2,000 'must" utilize hialher resources tor educe or ellmlnate his(her need for emergency shelter. If DHS determinas that such assets exist,THA eliglblli must be denied.' (SAEP Section 111.8). Analvsia A plain reading of the SAEP makes It dear that it mandates certain results under certain clrcumstane8. Contrary to the City's argumenbs, while DHS ha8 certafn discretion in weighing factors before rnaklng a finding of eligibility for temporary housing, that discretion fs not unfettered. There are a conslderabla number of mandated outcomes which leave DHS wlth no discretion about whether to deny temporary housing. Whlie in some c w there are exoaptians to outcomes, the a exceptions do not make otherwlna make a mandated outcome discretionary. Thus, for 3Contmryto the City's p i t i o n at oral argument, there is nothlng that tailors the infomation that an applicant is required t provide to his or her particular o circumstances. For example, a releaae to obtafn medical information la required from each and every applicant tegardlems of b relevance to hunderlying application. 'If the assets are not immediately avallable, DHS will meet the applicant's Immedlate need for shelter w i conducting an investigation to ensum that the h k r e s o u m do become available. -Page 10 of 18- . [* 12] example, the fellure to cooperate mandates a denial of temporary housing. While them is an exception if the applicant is suffering from a mental or physical impairment that affects his or her ability to moperate, DHS is not free to simply disregard the mandated outcome where that applicant b not svfferlng from a mental or physlcal impalrment. In fact, the invaablgatlon process to determine if someone flts within the axc8ptlon is itself a rigorous pmcess. Bwausa there are mandated outcoma in the SAEP, the court holds that it is a rule within the meaning of CAPA. The court rejects the Ckfs argument that the SAEP vests DHS wlth sumdent discretion to make decisions to fall outside the definition of a rule under CAPA. in a d c l y related argument, the City clalms that the SAEP is not a rule because It la not a statement of general application. This argumant is also rejected. As stated by Justice Billings in 1700 York m e , v Kaskel, supra, In oonnectlon with CAPA: A statement "of general applicabiltty" b "a ked, general principle to be applied by an admlnlatraffve agency without ward to other f a d and elrcumstances relevant to the regulatory scheme." (Matter of Roman Catholic Diocese v New York State Dept. of Health, 80 NYZd 848,951 flQ85"J The statement need not regulate the general public; if a polfcy is to be "Invariably applied acms-the-board" to the segmentq of the population whin its ambit Without regard to individual circumstances or mitigating factors ... as such [the policy" fails plainly within the deflnition of a 'rule.' " (Matter of Schwartfigura v Hartnett, 83 NY2d 206,301 [1994"; 888 also, Matter of Cordem v Corblsiero, 80 NY2d 771,772 [1992".) The SAEP is generally applicable to all people who apply for THA and must be utilized at all DHS intake facilities. it8 applicability Is not a suggestion or a request, it is an across the board requirement. The f8ct that there may elements of discretion in -Page 11 of 18- [* 13] connecbion with detsrmlnations on indMdual applications doas not negate the SAEP's general applicabllity because the dbcretlon does not Involve slmpty disregarding the SAEP. The court, therefore, concludes that the SAEP r ma the general applicability n t requirement. The City also argues that the SAEP falls within the CAPA exceptions to a rule because it has no legal effect. CAPA §1041.5@). In making this argument, the City claims that the SAEP I only an embdlment of requlrments contained in the State s Regulation and relevant State Admlnlstratlve Directives, with some additional detalb. Thus, the City argues that the SAEP has no legal effect bemuse lt has Implements the same legal abllgatlons that are otherwlsb contained in existing law. In v. Martlnaz. (8 NY3d 611 [20071) the Court of Appeafs held that, when the Department of Motor Vehides (LLDW specifted the documentary proof required to obtain a driver's llcense where the appllcant wa8 nut eligible for a soclal security number, the DMVs action was consistent with a duty imposed by a preexisting State regulation and, therefore, not subject to SAPA. In so holdlng, the court reawned that the requlrament for certain documents did not Impose any new obllgatlon on applkants or mate or deny subatantkre righb. While w a r t inez, supm, discusses a limited sxceptlon to the otherwise broad definition of a rule, It stlll must be mad with due regard for the fundamental principle of admlnlstratlve law, that agendas can only exercise those powers expressly delegated to i by the legislature, together with those t required by nsoessary Implication. Matter of Beer m e n v. New York State m, NY2d 266 (1802 ). In every circumstance where 8 rub is adopted by a 70 Clty agency, there must necessarily be some prlor enabling law, statutes andlor -Page 120f 18- [* 14] regulations concerning the wrne matter. Exceptions cannot be read 80 broadly as t o eviscerate the requirements of CAPA, and the exktencs of enabling law, in itself, is not sufficient to justify a legal conclusion that the ensuing statement or policy has no legal effect. The exception muat be stdctty limited to 8 statement or poky that strictly inbrprets an existing statute or just fllls In of the interatlm. Cubas Y. Martinez, supra, (Ciparick J. Dissenting opinion). tit Applying these standards to the SAEP, the court mds that It b not simply a s r c Interpretatton of the exlsting State Regulatlon or the State Administrative Dlmctlves, with a filling in of the intemtlces. The court holds that the SAEP does not fit wtthln the CAPA exception for staternen& or policies havlng no legal effect. Implicit in the City's argument, that because the SAEP duplicates the reiquirernern of the State Regulation and State Admlnlstrative Directhrsrr, the SAEP has no legal effect, I an acknowledgmentthat In the absence of such State requirements, s the SAEP does have legal effect. Even wlthout any lmpllclt acknowledgment, however, such conclusion is easily drawn. The application of the new ellglbllrty process has h e effect of determining who gets THA pursuant to the consent decree and exlstlng law. Publlc Statementa by DHS Commisslaner Seth Diamond confirm that the SAEP is expected to mduce the number of people who were previously being accommodated by the shetter system by about 10% (and possibly more), at a projected cost duction of $4,000,000 par year. The court acknowledges that there are many consistendes between the State Regulation and the State Adrnlnhtrative Directives and the SAEP. Conslstency, however, is not the same as constituting a "strlct interpretation" and the SAEP Imposes -Page 13 of 18- [* 15] many new obligations on appllcantrs, with a concomitant creation and denial of substantive rights. In addressing the Ctty's argument, the State Regulation and the State Adminlstrative Directives, need to be looked at separately. The State Regulation contains a general requirement that an applfcantcooperate and complete an assessment, and that the failure to do so mandates a denial of the application for THA, unless that failure is due to mental or physical Impairment. 18 NYCRR §352.36(c)(l). The S%ataRegulation 1 far too broad a pronouncement to exempt the highly detalled s requimmnts of the SAEP from CAPA. The State Administrative Directives are more detalled thatn the State Regulations, but they are still not as detailed SIS the raqufrernents and pmceduM set forth In the SAEP. The State Admfnlshtkra Directives provide that THA is only avallable to persons who can establish that they are without housing at the tlme of applicatfon. They place the burden on applicants to establish their need for THA by clear and convincing evidence. The State Administrathe Directives further provide that persons who resided In thelr own or shared housing immadlately prior to the time of application will be presumed to not be in need of THA and that a statement by a pdmary tenant, that the family can no longer reside in shared housing, b not by It#lf, suffldent proof that housing is no longer available. The State Adrninbtratfve Dlrectkres also Indicate that the failure to cooperate warrants a denial o temporary housing. f Although the State Administrative Directfves mkr to an assessment of elfglbility,neither the State Regulation nor the State Administrative Directives set out a specific Initial vetting process for determining ellglblllty. They do not mandata any -Page14 of 18- [* 16] particular application, nor do they mandate the signing of releasea for private information that may have no bearlng on any assessment of eliglbiiity. (e.g..: medlcal releases). They do not provlda the same level of detaflm the SAEP regarding what is considered a viable housing option that would make an applicant ineligible for THA. Unlike the SAEP, they contain no axpreas pmvEsions that supporllve houalng andlor midential treatment programs, under certain circumstances, constitute available housing options that make an appllcant ineligible for THA. Unlike the SAEP, they contain no rule that *tenancy rights" at any housing option will be "deemed" a viable housing optlon, requiring a finding of inalfgibility in the absence of an 'imrnlnant threat to heatth'orsafety." Certain additional considerations support the court's decision that the State Regulation and the State Administraffve Dlrerctives do not warrant a conclusion that CAPA should be dispensed with. The State Ragulatbn and State Administrative Directives have bean In place for no less than 15 yearn. The procedures set out in the SAEP, however, are new. If the SAEP is merely a strict interprotatbn of the Stat8 Regulation and State Administrative Dirsctlves, the procedures would have been in place for at least the la8t 15 years. The State does not join in the City's arguments. Notwithstanding that the City sought State approval for the SAEP, the State would onty m p r w n t that the SAEP is not Inconsistent with state law. By letter dated November 2,2001, Maria T VMal, . General Counsel to the Ofke of Temporary and Disability Assistance ("OTDA") stated: 'I am writing in mponse to your request f r approval of the o Department ofHomeless Servicea' (DHS) Single Adutts Eliglblltty Procedure (the "Procedure")..... The [OTDA] has - P q t 15 of 18- [* 17] revlewd the Procedure 8nd datemlned that it is not inconslstent with State law or regulatlons." In a subsequent letter, dated November 0,201 1, from Executive Deputy Commissioner Elizabeth R. Berlin of OTDA, to DHS Commissioner S t Dlamond, she eh Stat- : "Any suggestlon that'the [OTDAJapproved [DHS] shelter eligibility procdure for single homeless adults is inaccurate. OTDA has not commented on the subtantie maW of the proposed change, but instead determinated that the proposal was not inconsistent with State law." The State'a position that the SAEP is "not Inconsistent" with State law and regulations does not support the City's argument that the SAEP is a sri Interpretation t ct of State law, filling In I n t e r s t b , 88 Is required for the SAEP to qualrfy as an exemption from public vetting under CAPA. Far these reasons, the court finds that the SAEP should have been promulgated a$ a rule, consistent wlth the requiremanh of CAPA. the SAEP a nullity. m The City's failure to do 80 renders h v. Taxi & LimousfneComrn. of Citv of New York, 202 AD2d 368 (l& dept. 2001). Since the court has determined the SAEP la a nullity, the plaintffh In Callahan v, Carey, (index # 42582/79) do not require any further reilef on their mation. Thdr sddklonal arguments, regarding whether the SAEP violates the substance of the consent decree, am academic until such time as the SAEP Is property vetted under CAPA. The partie9 in C a m v. C a w agreed to one further court appearance in -Page 16 of 18- -. ... . [* 18] . connection with plaintlff8' motion. The next court date ie, therefore, set for March 16, 2012 at 9:30a.m. In connectlon with the Article 78 Proceeding, the motion to diemiss IS denied. Prooedurally,the City has the right to interpose an answer, notwithstanding that the denial of the motion to dismiss would appear to ff nally resolve all the Issues. The City Is, therefore,dlreded to interpose b answer on or before March 9, 2012. A new return date on the At 78 P r o d i n g is set for March 16, 2012 a g:30 a.m. At that time rM t the partim shouId be prepared to daddress the issue of whether the servlce of the answer leaves any further issues to be resolved by the court. CONCLUSION In accordance hemwith it 1 hereby: 8 ORDERED that the motion in Callahan v. Carey (index # 425&2/779) is granted to the extent of declaring Procedure No.12400 of the New York City Department of Homeless Services, entitled "SingleAdub Ellglbllity Pracedum," a nullity, and It is further ORDERED that the City's cross -motion to dlamlss the Article 78 Procaedhg is denied and it is further ORDERED that the City is diredad to interpose an answr to the petition In the Artlcfe 78 Proceeding on or before March Q, 2012, and it is further ORDERED that a court conference I Callahan v. Carey (Index # 42582179) I n s set for March 10,2012 at 9130 a.m. and it l further a -Page 17 of 18- [* 19] ORDERED that a new return date on the Article 78 Prooeedfng la set for March 16,2012 at 9 3 a.m. and it is further :0 ORDERED that any requested relief not otherwise expressly granted herein is denied, and it is further ORDERED that this canstitute3 the decision and order of the court. Dated: New York, New York February 21,2012 FILED -Page 18 of 18-

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