Gjonaj v City of New York

Annotate this Case
[*1] Gjonaj v City of New York 2018 NY Slip Op 51722(U) Decided on November 30, 2018 Supreme Court, Bronx County Kahn, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 30, 2018
Supreme Court, Bronx County

Mark Gjonaj, CLARISA ALAYETO, FELIX APONTE, BERNARD SMITH, WILBERT LAWTON, MOHAMMED MARDAH, SHEILA SANCHEZ, SARA NUNEZ-MEJIA,JEAN HILL, RAFAEL BARBOSA, YASMIN CRUZ, GERARDINA COLON, JANICE WALCOTT and ROBERT HALL, Plaintiffs,

against

The City of New York, Defendant.



28102/2017E



Attorneys for the Plaintiffs Mark Gjonaj

Lisa B Lia, Esq.

Attorneys for the Defendants The City of New York

Zachary W. Carter, Esq.

Corporation Counsel of the City of New York

By: Christopher King, Esq.

Haley Stein, Esq.

Amy McCamphill, Esq.

NEW YORK LAW DEPARTMENT
Francis A. Kahn III, J.

In this action, the Plaintiffs allege a cause of action for declaratory judgement whereby they seek injunctive relief. Plaintiffs also plead a private cause of action for a public nuisance for which they seek damages. The action is brought against the City of New York based upon its alleged violation and disregard of the City's Fair Share Criteria which originated in the New York City Charter §203 and are codified in the Rules of the City of New York (see 62 RCNY 10 App A §1, et. seq.).

In particular, the Plaintiffs assert that the City's failure to abide by the Fair Share Criteria has resulted in the placement of a disproportionate [*2]number of Residential Facilities —which include homeless shelters and mental health facilities— in the Bronx as compared to the other counties in New York City. In the complaint, the Plaintiffs are alleged to be fourteen individuals who "reside and/or work" in each of Bronx County's twelve local community boards and consist of "elected officials, business leaders and residents of the Bronx".

Section 203 of the City Charter, adopted in 1989, required the City Planning Commission ("CPC") to develop a set of criteria which city agencies are mandated to take into consideration when making certain decisions regarding city facilities. The CPC, through the Department of City Planning ("DCP"), established the "Fair Share Criteria" as guidelines for the siting of the new city facilities, as well as the expansion, reduction or closing of existing facilities. The agency making the decision regarding a city facility must consider the fair distribution of facilities among communities as well as communities' need for services, the efficiency of service delivery, and social and economic impact of facilities in the surrounding areas (NY City Charter § 203[a]). The Fair Share Criteria is codified at Appendix A to Title 62 of the Rules of the City of New York.

The Fair Share Criteria do not dictate procedures for agencies, but are, rather, as stated in the preface, "merely criteria intended to guide the location of city facilities." (Tribeca Community Assn. v New York City Dept. of Sanitation,Misc 3d, 2010 NY Misc. LEXIS 1235 [Sup Ct NY Cty 2010]). Although the applicable city agency is required to consider the enumerated Rules in the Criteria when making siting decisions, specific outcomes are not required by the Criteria. The discretionary nature of the Criteria is evident from the City's authority to determine the weight assigned to each of the Criteria in particular cases. Notwithstanding that discretion, the City agency involved in the siting of a facility must at least consider all the applicable criteria and this requirement to consider the criteria has the force of law.

Generally, in order to establish a siting, significant expansion, closing, significant reduction in size or change of use of City facilities, a Fair Share analysis by the agency responsible is required. When siting or expanding City facilities the Fair Share analysis must include, but is not limited to, the following:

• the examination of the need for the facility;• the facility's compatibility with existing facilities in the immediate vicinity of the site;• the extent to which neighborhood character would be adversely affected by a concentration of City and non City facilities;• suitability of the site to provide cost- effective delivery of services.

The Fair Share Criteria requires that agencies apply a stricter standard for sittings for residential facilities that include foster homes, impatient mental health treatment centers, homeless shelters and transitional housing. Likewise, that stricter standard applies to communities with a high ratio of "residential beds" to population and requires an explanation of whether alternative sites were considered and whether there are alternative sites in communities with lower "bed-to-population" ratios when a placement decision is made.

In the complaint, the Plaintiffs do not challenge any specific siting of a facility nor do they identify any particular facility in the Bronx at all. Instead, the Plaintiffs allege that based upon the City's disregard and/or misapplication of the Fair Share Criteria in general the Bronx has experienced placement of "more residential beds for homeless persons and mentally ill persons per capita than any other borough, or more than its 'fair share'". Plaintiffs also claim this has resulted in "substantial damage to residents and businesses" in the Bronx and has caused "diminished property values and exhaustion of other public resources". Additionally, Plaintiffs assert that the City has not issued an annual "beds-to-population" index as required by the Fair Share Criteria since 2003. As relief, the Plaintiffs seek an injunction compelling the City to "fully comply" with the Fair Share Criteria and to issue the annual "beds-to-population" index.

In response to the complaint, the City filed the within motion [FN1] to dismiss pursuant to CPLR §3211[a][1],[3] and [7] asserting that the plaintiffs lack standing, that the causes of action fail to state a claim as a matter of law and that the Plaintiffs' claims are barred by documentary evidence.

The over arching principle raised by this motion is justiciability; the concept of whether a dispute is amenable to traditional judicial resolution or raises tasks that other governmental branches are better suited to perform (see Klostermann v Cuomo, 61 NY2d 525, 535 [1984]). Subsumed within justiciability are many subjects including standing and the difference between controversies ripe for adjudication and political questions which are not (see generally Hearst Corp. v Clyne, 50 NY2d 707, 712 [1980]; Matter of Brennan Ctr. for Justice At NYU Sch. of Law v New York State Bd. of Elections, 159 AD3d 1301, 1303 [3d Dept 2018]).



I. Procedural Standards

On a motion to dismiss for failure to state a cause of action pursuant to CPLR §3211[a][7], the allegations contained in the complaint must be presumed to be true and liberally construed (Palazzolo v Herrick, Feinstein, LLP, 298 AD2d 372 [2d Dept 2002]; Schulman v Chase Manhattan Bank, 268 AD2d 174 [2d Dept 2000]). In determining such a motion "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual [*3]allegations are discerned which taken together manifest any cause of action cognizable at law" (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).

In certain situations, however, the presumption falls away when bare legal conclusions and factual claims contained in the complaint are flatly contradicted by evidence submitted by the defendant (Kantrowitz & Goldhamer, P.C., 265 AD2d 529 [2d Dept 1999]; Meyer v Guinta, 262 AD2d 463 [2d Dept 1999]). When the defendant offers such evidence, the court "must determine whether the proponent of the pleading has a cause of action, not whether she has stated one" (Kantrowitz & Goldhamer, P.C., supra).

A motion to dismiss pursuant to CPLR §3211[a][1] may only be granted where the "documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" (see Held v Kaufman, 91 NY2d 425, 430-431 [1998]; Jaslow v Jaslow, 279 AD2d 611 [2d Dept 2001]; Brunot v Brunot, 266 AD2d 421 [2d Dept 1999]).



II. Standing

As to the Plaintiffs' standing to bring their two causes of action, generally, "[the] court has no inherent power to right a wrong unless thereby the civil, property or personal rights of the plaintiff in the action or the petitioner in the proceeding are affected" (Schieffelin v Komfort, 212 NY 520, 530 [1914]). Thus, standing concerns whether the putative petitioner has sustained an "injury in fact" conferring a "concrete interest in prosecuting the action" (Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 772-773, [1991]). To constitute an injury in fact, a petitioners' claimed harm must be "direct and immediate" such that it cannot be "prevented or significantly ameliorated by . . . administrative action or by steps available to the complaining party" (Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510, 520 [1986]).

In this case, the Plaintiffs have questioned and attempt to correct and check the actions of the City of New York in its decision making process regarding the placement of residential facilities in the Bronx. Unquestionably, the Plaintiffs have broadly challenged governmental processes affecting a significant number city residents. In fact, the complaint expressly alleges that all the residents of Bronx County, as a group, are adversely affected by the City's placement of an alleged excess of residential facilities in Bronx County. Therefore, the complaint here begs the question of whether the Plaintiffs' personal or property rights have been directly and immediately affected by the actions or omissions of the City such that the Plaintiffs have standing.

In addition to sufficiently pleading an injury-in-fact, to establish standing to dispute administrative actions of the government, Plaintiffs must allege facts to sustain that they "would suffer direct injury different from that suffered by the public at large, and that the injury asserted falls within the zone of interests or concerns sought to be promoted or protected by the statutory provision under which the agency has acted" (Matter of Riverhead PGC, LLC v Town of Riverhead, 73 AD3d 931, 933 [2d Dept 2010]; see also Society of Plastics Indus. v County of Suffolk, supra at 774; Friedman v Town Clerk of Hempstead, 62 AD3d 699 [2d Dept 2009]).

The City does not argue that the claims in the Plaintiffs' complaint do not fall within the zone of interests of the City's Fair Share Criteria. Rather, the City asserts that the Plaintiffs have not sufficiently pled direct and individualized harm. Even assuming the truth of Plaintiffs' allegations and giving every favorable inference to the claims in the pleading (see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151-152 [2002]), the complaint fails to pass [*4]legal muster since "concreteness" is required to plead an injury-in-fact, not simply a reasonable likelihood of actual injury (NY State Ass'n of Nurse Anesthetists v Novello, 2 NY3d 207, 213 [2004]).

In their pleading, the Plaintiffs' allegations regarding their injuries are almost entirely generalized. No facts whatsoever specifying direct harm suffered by any Plaintiff allegedly resulting from the purported unbalanced placement of residential facilities in the Bronx are proffered. The only injury alleged particularly, diminished property values in the Bronx universally, is both legally inadequate to sustain standing in a private action for a public nuisance (see e.g. Allen v GE,Misc 3d, 2003 NY Misc LEXIS 1319 [Monroe Cty, 2003]; cf. Wakeman v Wilbur, 147 NY 657, 664 [1895]) and factually unconnected to the Plaintiffs as there is no indication in the complaint that any of the Plaintiffs actually own real property in Bronx County. Also not pled, even in conclusory fashion, is that the Plaintiffs' harm caused by the City's alleged actions is distinct in kind or degree from the Bronx community at large (Society of Plastics Indus. v County of Suffolk, supra).

The Plaintiffs attempt to frame the legal analysis on the issue of the Plaintiffs' particularized injury as one of harm sustained by the residents Bronx County as compared to the rest of the residents of the City of New York is misplaced. First, the Plaintiffs are the individuals named in the caption, not all the residents of Bronx County as a group. Secondly, the correct analytical metric is whether the putative claimant's injury is different "from that suffered by the general public in the vicinity" [emphasis added] (Matter of Powers v De Groodt, 43 AD3d 509, 513 [3d Dept 2007]; see also Matter of Village of Woodbury v Seggos, 154 AD3d 1256, 1259 [3d Dept 2017]).

The Plaintiffs' reliance on Scheg v Agway, Inc., 229 AD2d 963 [4th Dept 1996] and Association for Community Reform Now (ACORN) v Bloomberg,Misc 3d, 2006 NYLJ LEXIS 4793 [Sup Ct, NY Cty 2006] is misplaced. In Scheg the claimant's standing arose not out of "proximity" to a landfill as the Plaintiff alleges, but because toxic materials actually infiltrated the claimant's property and caused actual and unique damages. Similarly, ACORN's holding is based upon the same theory and, in any event, is not biding authority on this court.

Accordingly, the Plaintiffs lack to requisite standing to assert the causes of action in the complaint.



III. Failure to State a Claim

As per the Plaintiffs' complaint and their memorandum of law in opposition to the motion, the relief they seek from the causes of action for declaratory judgment and public nuisance is an injunction requiring the City to issue an annual homeless index required by the Rules and to fully comply with the Fair Share Criteria.

A. Nuisance

The Plaintiffs plead that the City has and continues to create a public nuisance through its inordinate placement of residential centers in Bronx County in violation of the Fair Share Criteria. The Plaintiffs, as private citizens, seek to curb this alleged behavior through a court order compelling the City to fully comply with the Fair Share Criteria.

"A public, or as sometimes termed a common, nuisance is an offense against the State and is subject to abatement or prosecution on application of the proper governmental agency" (Copart Industries, Inc. v Consolidated Edison Co., 41 NY2d 564 [1977]). This cause of action [*5]arises out of "conduct that amounts to a substantial interference with the exercise of a common right of the public, thereby offending public morals, interfering with the use by the public of a public place or endangering or injuring the property, health, safety or comfort of a considerable number of persons" (532 Madison Ave. Gourmet Foods, Inc. v Finlandia Ctr., Inc., 96 NY2d 280, 292 [2001]).

Private prosecution to check a public nuisance is restricted to avoid the innumerable lawsuits that could follow if members of the public were permitted seek remuneration for wrongs that affect the public-at-large (Restatement [Second] of Torts § 821C, comment a). Thus, "[a]lthough the allegation of substantial interference with the common rights of the public at large is a sufficient predicate for a private action based on public nuisance . . . the harm suffered must be "of a different kind from that suffered by other persons exercising the same public right'" (Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 334 [1983] [citations omitted]). In particular, the harm suffered by the putative plaintiff must be different in kind suffered from the surrounding community, not just greater in degree (see 532 Madison Ave. Gourmet Foods, Inc. v Finlandia Ctr., Inc., supra at 294; Matter of Agoglia v Benepe, 84 AD3d 1072, 1077 [2d Dept 2011]; Wheeler v Leb. Valley Auto Racing Corp., 303 AD2d 791, 793 [3d Dept 2003]; Leo v. General Electric Co., 145 AD2d 291 [2d Dept 1989]).

As presently constituted, the complaint does not allege the Plaintiffs have sustained a unique injury distinguishable from the rest of the community in Bronx County. The complaint expressly provides that the City's failure to abide by the Fair Share Criteria has harmed the Bronx entirely. While a diminution in property values can form a particularized injury, the alleged nuisance must affect the property of the claimants specifically (see e.g. Matter of Agoglia v Benepe, supra). Where, as here, the Plaintiffs have alleged economic loss and other injuries common to all residents on the Bronx entirely they have not pled a special or particular injury as required (532 Madison Ave. Gourmet Foods, Inc. v Finlandia Ctr., Inc., supra; Burns Jackson Miller Summit & Spitzer v Lindner, supra; Wheeler v Leb. Valley Auto Racing Corp., supra).

Accordingly, the Plaintiffs' first cause of action for a private action for a public nuisance fails to state a claim.



B. Declaratory Judgment/Injunctive Relief

It is undisputed the Plaintiffs are seeking injunctive relief against the City. Therefore, the Plaintiffs argument that their claims do not sound in mandamus is without merit. Compulsion of a specific action by governmental officials by injunction is indistinguishable from mandamus relief (see State Div. of Human Rights v New York State Dep't of Corr. Servs., 90 AD2d 51, 69 n 9 [2d Dept 1982]; Cemetery Board v Evergreens Cemetery, 16 AD2d 60, 62 [1st Dept 1962]).

With respect to the Plaintiffs demand for an order requiring the City to fully comply with the Fair Share Criteria, that remedy is extraordinary in nature (see e.g. Community Action against Lead Poisoning v Lyons, 43 AD2d 201, 202 [3d Dept 1974]). It is fundamental that "the judiciary is loathe to interfere with the executive department of the government in the exercise of its official duties, unless some specific act or thing which the law requires to be done has been omitted" (Matter of Walsh v LaGuardia, 269 NY 437, 441-442 [1936]). In other words, the duty sought to be enjoined or compelled is performance of an act commanded "by law and involving no exercise of discretion" (Hamptons Hospital & Medical Center, Inc. v Moore, 52 NY2d 88, 97 [1981]).

As to this prayer to for relief, requiring the City to comply with a regulatory scheme or other rules in a generalized manner is not available (Alliance to End Chickens as Kaporos v New York City Police Dept., 152 AD3d 113, 118 [1st Dept 2017], affdNY3d, 2018 NY Slip Op 07694 [2018]) since "'[m]andamus [does] not lie to compel a general course of official conduct, as it is impossible for a court to oversee the performance of such duties'" (Walsh v La Guardia, supra at 442, citing State ex rel. Hawes v Brewer, 39 Wash 65). Indeed, any attempt to frame a proper order on this demand for relief "would boggle the keenest of legal minds, irrespective of the attendant problems of its interpretation and enforcement" (Community Action against Lead Poisoning v Lyons, supra at 203) and would be improperly advisory (Matter of Hyde Park Landing, Ltd. v Town of Hyde Park, 130 AD3d 730, 732 [2d Dept 2015]). In the end, irrespective of the severity of the problem presented and the Plaintiffs' undoubtably sincere motivations, they "may not interpose themselves and the courts into the management and operation of public enterprises" (Jones v Beame, 45 NY2d 402, 407 [1978]).

The demand for an injunction compelling the City to comply with the administrative rules which call for the issuance of an annual homeless index pursuant to 62 RCNY 10 App A §6.53 also fails. The rule in question is contained within the section enumerating the additional Criteria which must be considered in community districts with a high ratio of residential facility beds to population. The relevant language provides as follows: "To facilitate this evaluation, the Department of City Planning will publish annually an index of the number of beds per thousand population, by type of residential facility (as set forth in Appendix C) and overall, in each community district. The index will be based upon the number of beds in all city, state, federal, and private facilities in operation or approved for operation" (62 RCNY 10 App A §6.53).

Contrary to the Plaintiffs' assertion, the rule necessitating the issuance of an annual index, despite being cast in the seemingly compulsory term "will", is nevertheless directory in nature (see Grossman v Rankin, 43 NY2d 493, 501 [1977]). Since the rule provides for no consequences if an annual index is not issued, it creates a discretionary rather than a mandatory act compliance with which may not be compelled by mandamus or injunctive relief (see e.g. Matter of City of New York v Novello, 65 AD3d 112 [1st Dept 2009]). In any event, even if the court determined that the requested relief was viable in this instance, based upon the Court's holding supra, the Plaintiffs lack standing to compel the City to comply with 62 RCNY 10 App A §6.53.

Consequently, the demand for injunctive relief requiring the City to fully comply with the Fair Share Criteria and compelling the City to comply with the administrative rules which call for the issuance of an annual homeless index fails as a matter of law to seek cognizable relief.

Accordingly, based upon all the foregoing, the Plaintiffs' complaint is dismissed.



Francis A. Kahn III, A.J.S.C. Footnotes

Footnote 1:This motion was assigned to the undersigned by order of Deputy Chief Administrative Judge George J. Silver dated October 1, 2018.