Herkert v State of New York

[*1] Herkert v State of New York 2023 NY Slip Op 23295 Decided on September 26, 2023 Supreme Court, Richmond County Ozzi, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on September 26, 2023
Supreme Court, Richmond County

Scott Herkert, VITO FOSSELLA in his capacity as Staten Island Borough President; NICOLE MALLIOTAKIS in her capacity as a member of U.S. Congress, ANDREW LANZA in his capacity as a New York State Senator, MICHAEL TANNOUSIS in his capacity as a New York State Representative, MICHAEL REILLY in his capacity as a New York State Representative, SAM PIROZZOLO in his capacity as a New York State Representative; JOE BORELLI in his capacity as a member of City Council; and DAVID CARR in his capacity as a member of City Council, Plaintiff(s)/Petitioner(s),

against

The State of New York, THE CITY OF NEW YORK, KATHY HOCHUL in her capacity as Governor of the State of New York, ERIC ADAMS in his capacity as Mayor of the City of New York, MOLLY WASOW PARK in her capacity as the Commissioner of the New York City Department of Social Services, Defendant(s)/Respondent(s).



Index No. 85174/2023



Counsel for Petitioners:
Louis M. Gelormino
Mark Fonte
Fonte and Gelormino
2550 Victory Blvd
Staten Island, NY 10314
(917) 968-1619

Counsel for Respondent City of New York
Corporation Counsel of the City of New York
Alice Robie Baker
Chad Steven Hughes
NYC Law Department
100 Church St, New York, NY 10007
(212) 356-2314
Wayne M. Ozzi, J.

(I) Introduction and Background

This Decision and Order is issued regarding the primary question before this Court, namely whether a preliminary injunction should be issued enjoining the Respondent City of New York (hereinafter "Respondents" or " the City") from using buildings at 57 Cleveland Place in Staten Island (the "facility") as a shelter for up to 300 migrant asylum seekers. For the reasons expressed below, the Court hereby issues a preliminary injunction enjoining the City from continuing to use facility as a shelter or other center housing migrant asylum seekers and requiring the City to remove those housed therein and to cease all such operations. This injunctive relief will take effect immediately upon Petitioners filing an undertaking of $250.00, as such undertaking is mandated by CPLR §6312(b).

The Petition in this case in the nature of an Article 78 proceeding was commenced on August 25, 2023 after the City announced a plan to use the facility as what it describes as a temporary shelter for migrant asylum seekers and undertook steps to ready the facility for use.

The City asserts that these actions were authorized by two Executive Orders ("the EOs"), Executive Order 224 ("EO 224") and Executive Order 230 ("EO 230"), which were promulgated by Mayor Eric Adams in October 2022 and regularly renewed since that time such that they remain in effect. As further discussed herein, the EOs declared an emergency and suspended various provisions of the Administrative Code and regulations which would facilitate the siting of temporary emergency shelters in any building.

By way of further background and context, 57 Cleveland Place is the location of the former St John's Villa Academy campus. The City purchased this campus in 2018 with a view toward continuing its use as an educational facility. The City's Education Department was said to commence a public review process to gather input from the community regarding the school facility, so it could "become an asset to the surrounding community," according to then Schools Chancellor Richard Carranzo.[FN1] Needless to say, no action was pursued by the City to achieve this goal.

The parties who have appeared in this proceeding were before the Court on September 14, 2023.

(II) The Concept of the Right to Shelter

(a) The Callahan Consent Decree

The genesis of Respondent's posture that they are mandated to provide shelter to each and every migrant asylum seeker within the City of New York is a Consent Judgment entered in the Supreme Court of New York County on August 26, 1981, emanating from a case entitled Callahan v. Carey (hereinafter "consent decree" or "consent judgment"). The Action was brought two years earlier "challenging the sufficiency and quality of shelter for homeless men in New York City." This relief was granted to homeless women in a subsequent action entitled Eldredge v. Koch (1983) and to homeless families in McCain v. Koch (1983).

The consent judgment specifically recites:

"NOW, therefore, without final adjudication of any issue of fact or law herein and without this Final Judgment constituting any evidence or admission by any party hereto with respect to any issue, and upon consent of all parties, it is hereby...."

This is followed by the terms of the agreement between the parties. This consent decree resulted after Justice Andrew Tyler ruled in favor of plaintiffs in December 5, 1979, concluding that under the State's Constitution, "the Bowery derelicts are entitled to board and lodging"and that the City had not made adequate arrangements for housing "all of the destitute and homeless alcoholics, addicts, mentally impaired derelicts, flotsam and jetsam, and others during the winter months." Again, the consent decree made clear that there was no adjudication of any issues intended, thereby essentially negating the effect of Justice Tyler's ruling.[FN2] However, his ruling does not reveal the purposes of the litigation, and ultimate consent decree— to provide a commitment by the City to provide shelter to those unfortunate New Yorkers described above. The consent decree was the result of nearly two years of negotiations over the particulars of the City's then-commitment to provide shelter.

This Court takes same to mean that there is no judicial adjudication of the existence of a right to shelter, including, inter alia, whether Article XVII of the State Constitution mandates such a right. Thus this Court is free to make such a determination without violating principles of precedent or stare decisis.

The Consent Decree was entered into to address a specific problem existing at the time — to provide housing for unfortunate New Yorkers who needed shelter. The City agreed to provide shelter to those who were homeless "by reason of physical, mental, or social dysfunction." While a few unnamed migrant asylum seekers may fit this description, these criteria are clearly not the reason the respondents are providing them with shelter. No one can argue that there was at that time a situation of the magnitude existing today — a virtual flood of migrant asylum seekers whose numbers would fill two Yankee Stadiums, and equal one-fifth of the population of Staten Island. Over 110,000 asylum seekers have arrived in New York City since Spring 2022, and the City is seeking to house approximately 60,000 of them.

The 1981 consent decree is intended to address a problem as different from today's dilemma as night and day. It is an anachronistic relic from the past, an altruistic plan to assist local "Bowery derelicts." This Court concludes that it does not create a "right to shelter," as that phrase has been colloquially used. Neither do other subsequent consent judgments and decrees [FN3] upholding the respondent's commitment to provide shelter to the homeless, nor any case law.

(b) The Narrow Construction of the New York State Constitution's Provisions

Reliance on the concept of a right to shelter is further had in Section 1 of Article XVII of [*2]the State Constitution, which reads:

"The aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions and in such manner and by such means, as the Legislature may from time to time determine."

The Court of Appeals has never definitively construed Article XVII as creating a right to shelter. Rather, it (and other courts) have been relegated to interpreting the various provisions of the consent decree and the parties' obligations thereunder.

When we speak of rights embedded in a Constitution, these are of two basic types. The first, well embedded in our consciousness, are individual freedoms we cherish every day — freedom of speech and assembly, free exercise of religion, freedom from unreasonable searches and seizures, freedom against self-incrimination, etc. These rights must be construed liberally in favor of those rights. (Anonymous v. Arkwright, 5 AD2d 792 (2d Dept.), citing Quinn v. United States, 349 US 155; People v Chapman, 69 NY2d 497, 502).

By contrast, Constitutional or legislative mandates imposing monetary liability on the government or use of government resources ought to be more narrowly interpreted. Statutes (or here a constitutional provision) which impose liability on public entities, are to be construed narrowly in order to confine the municipalities or public entities to the circumstances specifically set forth therein. (See e.g. Thornton v. California Unemployment Insurance Appeals Board, 204 Cal. App. 4th 1403, 1418; (statute imposing liability on public entities narrowly construed) It is proper and appropriate to construe such constitutional or statutory mandates narrowly because at risk is the ability of the government to provide money, resources and manpower to address the problem at hand. What is a government to do if it perceives a constitutional mandate yet has insufficient access to those resources to adequately address the problem before it? In the City of New York, its fisc, i.e., its treasury, is the responsibility of the City Council, upon receipt of a proposed budget by the Mayor. (New York City Charter Ch. 10, §225(a)). Already, the Mayor is directing city agencies to cut their budgets by November, as a result of this migrant asylum seeker situation, with additional potential cuts looming. (NY Post, September 9, 2023; see also Office of the Mayor, NYC.gov, September 9, 2023 Press Release, "Amid Deepening Asylum Seeker Crisis, Mayor Adams Announces New Steps to Stabilize City's Budget as Required by Law" [https://www.nyc.gov/office-of-the-mayor/news/650-23/amid-deepening-asylum-seeker-crisis-mayor-adams-new-steps-stabilize-city-s-budget-as]; see also Mayoral Directive 2023-1 and Mayoral Directive 2023-2, September 14, 2023).

Another scenario indicative of a conclusion that the Constitution does not mandate or create a right to shelter is the approach to the problem in the upstate counties. Approximately half of them have taken affirmative steps to either refuse to provide housing to them, or to refuse their entry into their county outright.[FN4] A judge in the Town of Cheektowaga, Erie County, granted a temporary restraining order blocking New York City from sending any more asylum seekers to its borders, because of conflicts with the local zoning laws.

The point to be made is that, if there were a right to shelter embedded in the State Constitution, all county and local municipalities upstate would be compelled to provide shelter to any and all migrant asylum seekers within their borders. Obviously they have not. A right to shelter, if it exists, would apply statewide, not just in New York City.

The relevant provision of our Constitution, quoted above, notably does not specifically include shelter as a matter to be provided by the State pursuant to a mandate. Any such interpretation would be misplaced. Indeed, even among those appropriately characterized as needy, the State is not mandated by the Constitution "to meet every legitimate need of every needy person" (Matter of Aliessa by Fayed v. Novello, 96 NY2d 418, 428, citing Matter of Bernstein v. Toia, 43 NY2d 437, 448-449)

In interpreting statutes and constitutional language, the intent is to be sought and ascertained from the words and language used. (People v. Munoz, 207 AD2d 418 (2d Dept), app. Den. 84 NY2d 938). If the terms used are plain and unambiguous, the words used must be construed in accordance with the expressed terms. (Drelich v. Kenlyn Homes, Inc., 86 AD2d 648, 649 (2d Dept.)). Here, the terms at issue, i.e., "the aid, care and support of the needy" are ambiguous; reasonable people can differ as to their usual and commonly understood meaning or to the extent of the obligation they impose on the State. (McKinney's Cons. Laws of NY, Statutes, §232). The words utilized should not be extended by construction beyond its express terms or reasonable implications of its language. (Drelich, supra, at 649).

More succinctly, the drafters of Article XVII Section 1. could have included language specifying shelter as an element of the State's mandate, but chose not to. The words used should not be expanded so as to enlarge their meaning to something that could have easily been expanded but was not. (Board of Education of Syracuse City School District in State Division of Human Rights, 38 AD2d 245, 248; Perry v. Zarcone, 98 Misc 2d 899, mod. on other grounds, 77 AD2d 881, appeal dismissed 52 NY2d 795).[FN5]

In Pajak v. Pajak, 56 NY2d 394, a matrimonial action, plaintiff husband commenced an action for divorce on cruel and inhumane treatment grounds. Defendant wife interposed a defense of mental illness on her part. As the Court noted, Domestic Relations Law § 171 provides for several defenses to an action based on adultery, but none for divorce actions founded on cruel and inhumane treatment. The Court noted that such was a strong indication that this was not an oversight. The failure of the Legislature to include a matter within a particular statute is an indication that its exclusion was "intended." (Pajak v. Pajak, 56 NY2d 394, 397). This principle of interpretation applies equally to constitutional language. So too with the failure to include shelter as a mandate upon the State.

The Court determines and concludes that the New York State Constitution provides no [*3]mandate to the State and local governments to provide shelter, and as applied to the case at bar, to the tens of thousands of migrant asylum seekers.

(III) The Declaration of an Emergency

Respondents' rely extensively on two Executive Orders, EO 224 and EO 230, as extended, declaring a state of emergency "based on the arrival of thousands of individuals and families seeking asylum" since April 2022 to argue that the siting of the shelter at 57 Cleveland Place was lawful.[FN6] The EOs provide for the suspension of various New York City Administrative Code provisions, including, for purposes this proceeding, the Zoning Resolution, any other Code provision which would prevent the use of buildings as temporary humanitarian relief centers, and the requirement for a public community hearing prior to establishment of the shelter. The authority to issue such emergency declarations is Executive Law §24(1).

The Court is not bound by the Mayor's declaration of an emergency.

" Although it is primarily for the Legislature to determine whether an emergency exists, such determination, while entitled to great weight and respect, is not conclusive upon the courts. It is for the courts to finally determine whether an emergency in fact exists to warrant the enactment of emergency police measures."

(Matter of Cohen v. Starke, 269 AD 256, 261, citing Block v. Hirsch, 156 US 135 and Chastleton Corp v. Sinclair, 264 US 543). This principle applies equally to emergencies declared by an Executive, such as the Mayor. Its first task is to assess the nature of the claimed emergency. I follow the roadmap set forth by my colleague, the Hon. Arlene P. Bluth, JSC in her decision in Armer v. City of New York, 2023 WL 4905655, 2023 NY Slip Op. 32646(U) (August 1, 2023). She confronted executive orders declaring an emergency, and which permitted the use of public spaces by restaurants to provide outdoor dining, otherwise in violation of various zoning, health, and other regulations. Justice Bluth rightly relied on Executive Law §20(2)(a) defining events constituting a disaster. It is a laundry list of natural disasters, and some human failures such as explosions or chemical releases. The massive influx of migrant asylum seekers is not a "disaster" contemplated by the Executive Law.

The influx of the migrant asylum seekers started in or about April 2022, when the Governor of Texas began busing them here, as part of his protest against the federal government's border and immigration policies. Whether the migrant asylum seekers came voluntarily or under circumstances less than voluntary is in dispute, but they continued to arrive in record unsustainable numbers. Respondents did nothing to stem the tide, such as diverting these persons elsewhere, rejecting or returning them outright, or constructing or retrofitting facilities in places permitted under zoning or other regulations. Respondents say nothing about any attempts to vet the arrivals with a view toward identifying and segregating those who have applied for asylum (and who are entitled to remain in the United States under Federal law while their [*4]applications are processed), and those who have not and may have entered the United States by less than legitimate means.[FN7] This Court cannot comment on the wisdom or efficacy of Respondents' policies, but they do have an impact on the issue of whether inadequate planning, or lack thereof, was the cause, or a contributing factor, of the problem they characterize as an emergency.

The frantic search for housing of migrants is not the result of a real emergency, as described in Executive Law §20(a)(2), or the commonly held sense of an emergency. It is the product of a lack of alternate planning and/or effective policy implementation. As the well known bromide goes, "[a] lack of planning on your part does not constitute an emergency on my part."[FN8]

Further, a person no less than the City Comptroller has apparently concluded that no emergency exists which would warrant the suspension of its due diligence requirements, in the context of awarding a $432 million migrant services contract.[FN9]

The emergency relied on is, for a large part, one of the Respondent's own making, unlike sudden and uncontrollable events like a pandemic, flooding, storm, blizzard, terrorist attacks, etc. This Court finds that Respondents, and the EOs they rely upon, fail to offer a rational justification for suspending local laws in order to permit the creation of shelters for migrant asylum seekers in places where they otherwise would not be authorized, or in disregard of the rights of the community to notice and a public hearing, or other right to be heard before large scale shelters open in residential areas. The Respondents do not adequately explain why an emergency exists that requires the suspension of certain local laws and regulations. (Armer v. City of New York, supra). EO 230 also provides no authority for the City's emergency declaration here because it exceeds the limitations of Executive Law § 24(1)(g). EO 230, in the words of the City, suspends " 'district use laws' or 'any other provisions' of the Zoning Resolution that would prevent the alteration and/or use of buildings as temporary humanitarian relief centers." (City Memorandum of Law, NYSCEF Doc No. 17 at p. 8; EO 230).[FN10] Subsection (1)(g) includes a [*5]number of limitations on the executive's authority to suspend laws, two of which are particularly germane here. First, Subsection (1)(g)(ii) provides that no suspension shall be made which does not safeguard the health and welfare of the public and which is not "reasonably necessary." Second, Subsection (1)(g)(v) provides that any suspension order shall provide for the "minimum deviation" from the requirements of the local law, ordinance or regulation suspended consistent with the disaster action deemed necessary. The Court's view is that EO 230 appears to go beyond the terms of the Executive Law because as such a broad and undefined suspension cannot be said to be "reasonably necessary" to respond to the current situation, and does not appear comport with the "minimum deviation" requirement. It simply does not seem possible that at the time the EOs were issued, in October 2022, it could be reasonably concluded that such an open-ended suspension was necessary, or that there were no narrower alternatives, which may have reasonably addressed the immediate issue. Indeed, drafting the EO to allow such an open-ended suspension of any part of the Zoning Resolution or NYC Administrative Code that stands in the way of using any building as a shelter, is inherently at odds with the concept of minimal deviation. This issue is particularly pertinent to this site, which sits on a most restrictive type of residential zoning, R1-2, which limits residences to single family detached homes, and allows limited other permitted community uses. (See Zoning Resolution § 22-00).

While Executive Law § 24(1)(f) specifically references the "establishment or designation of emergency shelters, emergency medical shelters," as a permissible subject of an emergency declaration, this does not negate the requirements of subsection (1)(g). Executive Law 24(1)(g)(ii) and (v) make clear that the Executive does not have wholesale and unending power to suspend laws. Relatedly, the Court additionally finds that, even if the EO 230's suspension of such codes and resolutions was initially valid, it has outlasted its validity. Although the Court finds that no emergency existed warranting the emergency declaration, any emergency, as that term is used in the Executive Law, that is asserted to have existed in October 2022, nearly a year ago, can no longer be said to be an emergency. And, the EO's broad suspension of laws can no longer be said to be reasonably necessary or the minimal deviation reasonably needed. As cited above, the New York City Comptroller opined that, the situation is no longer "an unexpected situation that merits the broad suspension [that had been granted]."[FN11] While not binding, his view is indicative of the specious arguments in favor of an emergency.

(IV) The Applicability of the Zoning Resolution

In light of the Court's conclusion that no emergency existed, the Court will look at whether this migrant asylum seeker shelter is appropriate for this location under the Zoning [*6]Resolution. (ZR).

The facility is located in a R1-2 zone, for primarily single-family residences. Other uses are also permitted, under ZR 22-13, Use Group 3, but none indicated therein specifically permit the use sought by respondent City. For reasons set forth below, the Court concludes that a shelter for homeless migrants does not fall under the category of a "community facility" or their accessory uses, nor is it a "philanthropic" facility under ZR 22-13(A).

a) The Facility is not a Community Facility

The City argues in the alternative, i.e., that even if the Court were to conclude that the EOs did not operate to suspend the ZR, the zoning laws nevertheless would permit such a use at the facility. In this regard, the City argues in their papers that the Petitioners have not shown that shelters are not permitted in R1-2 zoning. At argument before the Court, the City pointed to language within the Permitted Uses portion of the residential zoning provisions in the Zoning Code that permit "philanthropic and non-profit institutions with overnight accommodations." The Court addresses this later argument for the sake of completeness only, although it was raised only at oral argument, not in the City's written filings and the Court therefore need not consider it.

In the Permitted Uses section of the Zoning Resolution, "Use Group 3," Zoning Resolution § 22-13, includes the following prefatory language explaining that [t]he entire section consists of community facilities that: "(1) may appropriately be located in residential areas to serve educational needs or to provide other essential services for the residents; or (2) can perform their activities more effectively in a residential environment, unaffected by objectionable influences from adjacent industrial or general service uses; and (3) do not create significant objectionable influences in residential areas." (emphasis added). The permitted uses in Zoning Resolution § 22-13 include "philanthropic and non-profit institutions with overnight accommodations."

The Court concludes that the shelter in question would not be a permitted use under the Zoning Resolution. It is not a use located in a residential area that is intended to serve the educational needs or to provide other essential services for the residents. It also is not a use that "does not create significant objectionable influences in residential areas," because, among other issues, the modifications necessary to operate the facility have included barricades, security lighting, trailer buildings, daily sewerage pump outs, and the running of generators.

b) The Facility is not a Philanthropic Institution

The Court also finds that the shelter in question is not a philanthropic or a non-profit institution, as the City suggested at the oral argument, and, as such, is not permitted under the zoning laws. Here, the shelter operates under a licensing agreement between the City, "a Municipal Corporation," and the City's School Construction Authority, described as the owner of the property, wherein the parties agreed to allow the City a 90-day license to use the facility. (See License Agreement, City's Exhibit E, NYSCEF Doc No. 15). Additionally, the license does not require involvement of a philanthropic or a non-profit institution, and indeed the providers referenced in the license appear to be businesses. (See License, including p. 1, Recitals and Section 1.1b, and p. 8, Exhibit B, List of Providers ).

No definition of the phrase "philanthropic or non-profit institution" is provided in the [*7]Zoning Resolution. (See Zoning Resolution § 12-10, Definitions Section). Case law similarly provides no definition.[FN12] In the absence of a contrary intent, where no specific definition is provided, the plain meaning of statutory language will prevail and "words of ordinary import will be interpreted with their usual and commonly understood meaning." (Walsh v. New York State Comptroller, 34 NY3d 520, 524 (2019). In this regard, dictionary definitions can provide useful guideposts in determining the meaning of a word or phrase. (Ibid). The ordinary meaning of the words "philanthropic institution" and "non-profit institution" includes private, non-governmental enterprises funded by donations, not operated for a profit, and often regulated as non-profit organizations. (See also Merriam-Webster.com, definition of "non-profit", accessed September 20, 2023, "not conducted or maintained for the purpose of making a profit"). Relatedly, a "philanthropic foundation" is described in part in Britannica.com as a "non-governmental, nonprofit organization with assets provided by donors and managed by its own officials ...." (https: www.Britannica.com/topic/philanthropic-foundation, by Joseph C. Kiger, updated September 5, 2023,). These terms do not include the temporary shelter for non-resident asylum seekers essentially leased by the City and operated at public expense.

c) Other Definitions of Permitted Uses in the ZR do not apply

Nor does this shelter fall under the permitted uses in an R1-2 zones by ZR §22-14. Again, the shelter is not a "community facility" contemplated pursuant to Use Group 4. "Settlement houses" were social centers established in the slums around the turn of the century. The shelter is not a "welfare center" as listed in the ZR, and even if it were, it would not be permitted in R1 or R2 Districts as of right.

Thus, the Court concludes that the continued use of the facility as a shelter for migrant asylum seekers violates the City's own zoning restrictions.

(V) The Right to a Community Hearing and Standing

The lack of an emergency as contemplated under law similarly impacts the right of the community to a public hearing on the siting of homeless shelters. Respondents, through the Department of Homeless Services, failed to provide such a hearing, relying on the exception for "short-term emergency homeless shelters" in the law.[FN13] The stated need for this law is about "accountability, and transparency when community leaders, elected officials and residents raise public safety, transportation and educational accessibility concerns with sites of homeless shelters. The use of the term "shall" throughout the statute is mandatory (D'Addario v. McNab, 23 NY2d 84, 89; D'Elia on Behalf of Maggie M. V. Douglas B., 138 Misc 2d 370-377; Metro Burak, Inc. V. Rosenthal and Rosenthal, 83 Misc 2d 637, 643, modified on other grounds 51 AD2d 1003), eliminating any discretion on the part of the Department of Homeless Services.

The widely accepted principle of law is, "for every right there is a remedy" (Williams v. [*8]U.S., 2009 WL 3200687; Marbury v. Madison, 1 Cranch 137,163) and the right here is the one afforded by the Administrative Code §21-324 to the individuals listed therein to participate in a community hearing. What do the respondents expect the Court to do when faced with non-compliance with the law? Shrug its shoulders and just ignore it?

Thus, the Court concludes that the respondents failed to provide plaintiff Scott Herkert and the other Petitioners their statutory right to be heard as to their concerns. And therein lies the harm.

The case of Arntzen v. City of New York (Supreme Court, New York County, Index No. 159502/2021, 3/23/22, (Nervo, J.)[FN14] is instructive. Arntzen concerned the City's program to allow outdoor dining options, including utilizing public sidewalks and street spaces. Such uses were otherwise in violation of various zoning regulations, and the State Environmental Quality Review Act ("SEQRA"), but they were bypassed by virtue of the Mayor's Executive Order No 126 (2020) which, inter alia, unilaterally declared that the program would not significantly impact the environment, i.e., noise, traffic, sanitation, etc. Justice Nervo correctly concluded that respondents "bald assertion" that the program would have no impact flew in the face of evidence, was arbitrary and capricious, and unlawful. He correctly noted that the agency involved (the Department of Transportation) made its determination unilaterally, which served only as a "thinly veiled attempt to avoid statutory scrutiny of the program by a baseless declaration of its own omnipotence."

(a) Standing

The issue of standing has arisen in this proceeding. Relatedly, the Petitioners have standing by virtue of this same Code provision, Administrative Code §21-324, which requires notification of elected officials and the community board for the district in which the proposed shelter is to be sited and for an opportunity to be heard to be provided to the public. Indeed, as the case law quoted above states, the intent of this provision is to allow community leaders, elected officials and residents to voice their concerns about a potential shelter site. Indeed, it is the duty of public officials to keep constituents informed and to advocate on their behalf. They were denied the means to do their duty here by the violation of this Code provision and their right to be heard. Violation of this provision meets the injury in fact requirement. (Mental Hygiene Legal Servs. v. Daniels, 33 NY3d 44, 50 (2019)(the party must have suffered an "injury in fact" that is not tenuous or conjectural, but concrete and particularized). Further, the denial of one's rights, in and of itself, can constitute harm. (See, People v. Cherry, 104 AD3d 468 (denied the right of self-representation).

Petitioner Herkert also has standing to challenge the validity of the action and to assert a nuisance as well, based upon the pleadings, filings, and exhibits in this matter, which allege the deleterious impacts of the siting of the shelter adjacent to his single family residence immediately adjacent to the facility. These allegations include loud noises, maleficent odors, and the effluence of murky water. While petitioner Herkert seeks no particular monetary damages, his claims are nevertheless cognizable and actionable (Copart Industries Inc. v. Consolidated Edison Co. of New York, Inc., 41 NY2d 564). As indicated hereinafter, these allegations will be severed and be [*9]the subject of an evidentiary hearing to be scheduled in the near future.

(VI) Standards for an Article 78 Proceeding

In reviewing an administrative action under Article 78, the Court's review is circumscribed; courts cannot interfere unless there is no rational basis for the exercise of discretion or the action complained of is arbitrary and capricious. (Generoso v. Adams, 74 Misc 3d 760, 164 N.Y.S.3d 383 (NY Sup. Ct. 2022)). A court may not substitute its judgment for that of the executive decision maker. Instead, review is limited to whether the action was taken without a sound basis in reason and without regard to the facts. (Pell v. Bd. of Ed. of Union Free Sch. Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester Cnty., 34 NY2d 222, 231 (1974)).

In this case, the Court has concluded that the EOs on which these actions are based are ineffective as a basis to suspend any laws, regulations, etc., that the City is in violation of the zoning laws, and that the rights afforded the residents, public officials, etc. to a public hearing have been denied. Thus, the City's placement of migrant asylum seekers has no rational basis. The decision to site the facility at 57 Cleveland Place is itself an administrative action, and thus is subject to the rational basis test. According to the Respondents, due to the migrant situation, the City "must identify, build out, and operate new facilities wherever there is capacity." Similarly, the Affidavit of Deputy Chief of Staff Schaeffer, who is the City's Interim Director of the Office of Asylum Seeker Operations, explains that the City considered the Cleveland Place property and its facilities and determined that several buildings would be "appropriate" to house migrant asylum seekers; however, it is wholly silent on the consideration of important issues such as zoning, impact on the environment and the neighborhood, availability of municipal services, health concerns, etc.

A decision to use the facility simply because it was there does not satisfy the rational basis test. The City's filed papers are silent as to whether any consideration is given to siting other than "identify, build out and operate." The process for siting seems to be completely open ended, and without consideration of suitability, deviations from legal requirements that may otherwise apply, or community welfare issues. The failure to consider such alternatives, under the circumstances, makes Respondents' decision to site at this facility irrational, in light of the lack of an emergency.

(VII) The Request for a Preliminary Injunction

In light of the Court's determinations in this matter, it will now address whether a preliminary injunction is appropriate. The decision to grant a preliminary injunction is a matter committed to the sound discretion of the court hearing the motion. (Masjid Usman, Inc. v. Beech 140, LLC, 68 AD3d 942 (2009)). In general, to prevail on an application for preliminary injunction, the moving party has the burden of demonstrating: (1) a likelihood of ultimate success on the merits; (2) irreparable injury absent the granting of the preliminary injunction; and (3) that a balancing of equities favors the movant's position. (Sarker v. Das, 203 AD3d 973, 975 (2d Dept. 2022)).

A court evaluating a motion for a preliminary injunction must be mindful that the purpose of a preliminary injunction is to maintain the status quo and prevent the dissipation of property that could render a judgment ineffectual, not to determine the ultimate rights of the parties. (Ruiz v. Meloney, 26 AD3d 485, 486, (2006); Masjid Usman, Inc. v. Beech 140, LLC, 68 AD3d at [*10]942)), notwithstanding whether the three elements cited above have been strictly met. The purpose of the Petitioners seeking injunctive relief in this case is to preserve the status quo by stopping the use of this facility pending a final adjudication of the issues it raises regarding the validity of its use. Despite the City's arguments, it is Petitioners who seek to preserve the status quo with their petition. In this case, the petition came before this Court on August 25, 2023 seeking to stop the use of this facility before persons were moved into the buildings, and the Court issued the TRO that day just as some small number of residents were transported to the facility and beginning to move into the Cleveland Avenue campus.[FN15] (The Appellate Division vacated the TRO later that day). Therefore, the City's argument, that granting injunctive relief would disturb the status quo is specious at best. Beyond this issue, in any event, the Court does not view the issuance of a preliminary injunction stopping the very recent partial occupancy of this facility, which took place while this application was pending, as the fair equivalent of disturbing the status quo. It appears that operations at the facility are not in full use —at the time of the argument on September 14, 2023, the return date of the Order to Show Cause, Respondent attorneys advised the Court was advised that there were 72 persons located in the facility, which the City has slated to hold as many as 300 individuals.

As far as the Court is concerned, the status quo to be preserved is the one that existed at the time of the filing of this proceeding, when the facility was vacant.

Additionally, courts are not prohibited from requiring action as part of preliminary injunction, particularly where the action is of a type that prevents the dissipation of property or prevents the exacerbation of the alleged injury. That is what is requested here. While courts are "reluctant" to grant mandatory preliminary injunctions (here, directing that the facility be vacated), they may be granted where the right is "clearly established." (Second on Second Café, Inc. v. Hing Sing Trading, Inc., 66 AD3d 255, 265, 884 N.Y.S.2d 353, 360—61 (1st Dept. 2009) (internal quotations and citations omitted); see, also, Chrysler Corp. v. Fedders Corp., 63 AD2d 567 (1978) (granting mandatory preliminary injunction directing defendant to secure funds for payment of dividends sought by plaintiff in the action pending determination thereof)). As Court of Appeals observed in the seminal case on this issue: "[W]here the complainant presents a case showing or tending to show that affirmative action by the defendant, of a temporary character, is necessary to preserve the status of the parties, then a mandatory injunction may be granted." (Bachman v. Harrington, 184 NY 458, 464 (1906)). The Court finds that this standard is met in this case, necessitating such relief.

(a) Likelihood of Success on the Merits

Turning to the three-prong standard for a preliminary injunction, the Court finds that there is likelihood that Petitioners will succeed on the merits of this petition. As described in this opinion, the EOs at issue exceed that which is authorized by the Executive Law, in several respects: there is no emergency, as there is no right to shelter that would apply to this situation; the Executive Orders' suspension of law provisions are not reasonably necessary and do not provide for the minimum deviation from duly enacted law in that they suspend code and [*11]regulations on a wholesale open-ended basis vis a vis the siting of shelters; for these reasons, as well, the EOs lack a rational basis as the City is in violation of the Zoning Resolution; there is no rational basis for the siting of this facility; and the City is in violation of the public hearing requirement.

As noted, the Court will sever the nuisance claims in this matter, and in light of the above conclusions, there is no need for the Court to make findings regarding these allegations relative to the preliminary injunction.

(b) The Balancing of the Equities

In light of the Court's findings that the City's actions are not permitted by law, the equities also weigh in Petitioners' favor. The Court also notes that the City is indicating it is housing thousands upon thousands of persons. Recent reports indicate that the City has recently entered into an agreement to create a shelter at Floyd Bennett Field, and is working on many other arrangements for migrant asylum seekers. Relocating approximately six dozen persons in light of the scope of the this project, does not appear to be an inequitable undertaking. Further, the City itself currently is before the Supreme Court, in New York County, arguing that Callahan consent decree should be modified — signaling perhaps that the City's approach to this issue may be changing.

(c) Irreparable Harm

The Court finds that this case is not of a type to which this prong of the preliminary injunction standard applies. In zoning violation cases, preliminary injunctions may issue without a showing of irreparable harm. (See Thilberg v. Mohr, 74 AD3d 1055 (2d Dept. 2010)). However, alternatively, there is irreparable harm here. Here, the harm is irreparable because the Petitioners were denied their right to a hearing under the Administrative Code, and the City took and continues to take actions regarding this shelter site without any public input from officials or from the public, despite this provision and despite the delay between the entry of the licensing agreement and the occupants taking residence. This violation is irreparable, and is of a continuing nature.

Petitioners also establish the potential for irreparable harm if a preliminary injunction does not issue because the loss does not appear to be temporary. The duration of the operation of this facility is open ended. While this facility is operated under a license to the City for a 90 days, ending on November 15, 2023 by its terms, it stretches credulity to argue that the migrant problem will end by then. Of course, the Respondents plan to extend their license. The current situation has been described by City representatives as continuing unabated, and a problem for which there appears to be no answer. Given the City's position as posited to the Court, that it believes it has an obligation to house all migrant asylum seekers who come into the City, the problem appears to be unending. Security features, trailer buildings, temporary showers, and obviously, other retrofitting, all have been accomplished to make it a place for overnight accommodation. Further, Petitioners argue before the Court that Mr. Herkert and his neighbors consider their outdoor spaces to be virtually unusable, and the day-to-day quiet enjoyment of their properties impinged upon in substantial ways, all of which will have a continuing deleterious effect. There appears to be no "end game," or plan for resolution of this situation, such that, absent an injunction, it seems likely that the residents will continue to experience these same conditions, which represent an overnight and drastic change of circumstances in this [*12]residential area of single family detached homes. These circumstances, too, also contribute to the Court's findings on this point.

(VIII) Epilogue

(a) Observations on the Use of Executive Actions Invoking Emergency Powers

"Make no mistake - executive action is sometimes necessary and appropriate, but if emergency decrees promise to solve some problems, they threaten to generate others. And rule by indefinite emergency edict risks leaving all of us with a shell of a democracy and civil liberties just as hollow." (Arizona et al v. Mayorkas, et. al., 598 U.S. __ , 143 S. Ct. 1312, 216 L.Ed 2d 452 (2023), Gorsuch, J.)

"History is littered with unfortunate examples of overly broad judicial deference to the government when the government has invoked emergency powers and asserts crisis circumstances to override equal treatment and free speech principles." (Agudath Israel of America v. Cuomo, 983 F.3d 620, 636, citing Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603 (Kavanaugh, J., in dissent).

(b) Severance of the nuisance allegations

Concerning petitioners Herkert's nuisance assertions, they will be the subject of a formal evidentiary hearing to be scheduled. The record to this point is insufficient to ascertain the specific of these claims.

If such claims are substantiated, it will be but one factor in this Court's final determination as to whether a permanent injunction will lie. Although not specifically requested, a permanent injunction is the logical next step, if warranted. A preliminary injunction, must be, by definition, preliminary to something, and can't be open-ended.

(IX) Conclusions

In conclusion, and in summary, the Court makes the following determinations in this matter:

(1) Neither the Callahan v. Carey consent decree (nor its progeny) nor the New York State Constitution provide a "Right to Shelter," that would require the City or State of New York to provide shelter to the tens of thousands of migrant asylum seekers who have arrived in the last 18 months, therefore the underlying justification for the City's actions and the Mayor's use of the emergency powers are without basis;

(2) If the City continues to seek shelter for all migrant asylum seekers, it is doing so as a matter of policy, and not as a result of any mandate; the current problem is not an emergency within the meaning of the Executive Law, and further, the EOs exceed the authority of Executive Law §24, by going beyond that which may be "reasonably necessary" to respond to the current situation, and to the extent the Executive Orders purport to suspend certain laws and regulations, specifically here, the Zoning Resolution, they are of no force and effect;

(3) The Cleveland Avenue property is not zoned for use as a shelter for migrant asylum seekers, and permitted uses for the applicable zoning designations do not include the facilities of a type at issue here, such that the City's actions in operating it as a shelter for migrant asylum seekers violate the Zoning Resolution;

(4) There is no rational basis for the City's decision to site a shelter for 300 migrant asylum seekers at the Cleveland Avenue property, which is zoned as R1-2, as the City's siting decision seems to be in essence a non-process of identifying and utilizing any vacant properties [*13]available to the City that may be modified to some degree so as to allow overnight occupancy;

(5) The requirements for a preliminary injunction: a likelihood of success on the merits; the equities in the Petitioners' favor; and irreparable harm, the latter of which does not strictly apply in this case, as it involves a zoning/siting decision, all are met here;

(6) Respondents have failed to hold a community hearing and to provide notice of same in violation of Administrative Code §21-324, which is a cognizable injury. The Court finds that there is a sufficient basis on which to find that the parties have standing to maintain this action.

(7) The Petitioner's nuisance claims are hereby severed and the Court will hold an evidentiary hearing to make determinations regarding these claims.

In light of these conclusions, the Court hereby imposes a preliminary injunction enjoining the use of the 57 Cleveland Avenue property as a shelter for migrant asylum seekers, and directing and requiring that the City affirmatively act to have the any residents of this facility removed forthwith such that all shelter residents are removed therefrom. The injunction will be effective immediately upon Petitioners filing an undertaking, as mandated by CPLR §6312(b), in the amount of $250.00 The Court will be in communication with Counsel for purposes of scheduling the evidentiary hearing on a mutually convenient date.

This shall constitute the decision and order of the Court.

ENTER:
DATED: September 26, 2023

______________________
Hon. Wayne M. Ozzi
Justice of the Supreme Court Footnotes

Footnote 1:https:ny1.com/nyc/staten-island/news/2018/07/28/city-buys-old-st-john-villa-academy-campus—making-way-for-1-000—public-school-seats

Footnote 2:Maria Foscarinis, "The Evolution of Homelessness: Trends and Future Directions", in Robert Hartmann McNamara, ed., Homelessness in America, Volume 3: Solutions to Homelessness, Westport, Connecticut / London: Prager, 2008 ISBN 978-0-275-99561-4, pp. 113-32, pp. 115-116.

Footnote 3:See e.g., Boston v. City of New York, Supreme Court, New York County, Index. No. 412295/2008, 9/18/2008

Footnote 4: "Which Counties are Closing Down their Doors to Asylum Seekers?" by Annie McDonough and Sahalie Donaldson, City and State, 9/18/23.

Footnote 5:The Court notes that there was a technical amendment made to Article XVII, Sec.1, effective January 1, 2022. In light of the well-known Callahan consent decree, and the ongoing issue of homelessness, the drafters of the amendment had the opportunity to add "shelter" as a constitutional mandate. The Court can only conclude that the omission of this language was intentional. It is a fundamental tenet of statutory construction that the Legislature is presumed to be aware of the law in existence at the time of an enactment, as well as the effect and implication of its own enactments. (See Dandomar Co., LLC v. Town of Pleasant Valley Town Bd., 86 AD3d 83, 92 (2d Dept. 2011).

Footnote 6:The City also argues that the Petitioners may not challenge the validity of the EOs as petitioners first raised such arguments in their reply. This is misplaced — the City argued in its opposition that the action was lawful as it was authorized by the EOs, which suspended the zoning laws. The Petitioners were well within their rights to oppose this argument in their reply, including by arguing that the EOs were invalid, and consequently that the suspension of the Zoning Code was without effect.

Footnote 7:Any alien physically present in the United States, regardless of status, may apply for asylum within one year of entry. (8 U.S.C. §1158(a)(1)). However, such alien may not apply if the Attorney General determines that the alien's life or freedom would not be threatened in his/her own country on account of race, religion, nationality, membership in a particular social group, or political opinions (8 U.S.C. §1158(a)(2)(A.), or if the alien has previously applied for asylum and been denied (8 U.S.C. §1158(a)(2)(C)).

Footnote 8:Often attributed to Robert M. Carter, a noted paleontologist, geologist and marine biologist.

Footnote 9:Scandal-Plagued Migrant Services Firm Could Limit New York's Options, New York Times, 9/18/23

Footnote 10:Specifically, Executive Order 230, signed on October 22, 2022, states in part,

"I hereby suspend: (I) Sections 28-111.1.1 and 28-111.1.2 of the Administrative Code of the City of New York, but only to the extent such provisions limit temporary structures or uses to no more than 90 days; (ii) sections 28-118.3.1 and 28-118.3.2 of the Administrative Code of the City of New York, Chapter 2 of Article 2, Chapter 2 of Article 3, Chapter 2 of Article 4 and any other applicable district use regulations, including in Special Purpose Districts, of the Zoning Resolution of the City of New York and any other provisions of such code, resolution or rules, to the extent that they would prevent the alteration and/or use of buildings as temporary humanitarian relief centers...." EO 230 initially suspended these laws for a period of five days from October 22, 2022 and the Order has been renewed for additional five day periods, since its issuance.

Footnote 11:"Scandal-Plagued Migrant Services Firm Could Limit New York's Options," New York Times, 9/18/23.

Footnote 12:See Manton v. New York City Bd. of Standards & Appeals, 117 Misc 2d 255, 258, 457 N.Y.S.2d 675, 677 (Sup. Ct. Que. Cty. 1982), finding that this phrase was not void for vagueness but instead was easily understood in upholding the approval of drug rehabilitation facility operated by Phoenix House Foundation, Inc., a non-profit organization.

Footnote 13:New York City Administrative Code §21-324.

Footnote 14:Arntzen was dismissed on appeal, solely on ripeness grounds only (209 AD3d 404, lv to appeal denied 39 NY3d 908).

Footnote 15:See City's Memorandum of Law in Opposition, p. 21, filed on August 30, 2023, some five days after the initial hearing, referencing that the premises housed 18 residents. (NYSCEF Doc No. 17).