New York City Housing Authority residents who went without heat during a cold snap that hit the city this past winter won’t be able to band together as a certified class in a suit against the housing authority, a Manhattan judge said in Friday.
Manhattan Supreme Court Justice Carol Edmead also told attorneys from Willkie Farr & Gallagher and the Legal Aid Society that the state court case regarding lost heat may become pre-empted by a consent decree in a federal lawsuit against NYCHA that addresses a myriad of issues with living conditions in the city’s public housing, which awaits a judge’s approval.
“I don’t see class certification,” Edmead said, issuing a ruling from the bench. “I don’t see it met.” The judge said she would issue a more detailed ruling at a later date, but said that, in its current form, the consent decree awaiting approval from U.S. District Judge William Pauley III of the Southern District of New York would pre-empt the claims being brought in the state case.
The proposed class included NYCHA residents who went without heat last winter, which included the worst cold spell for the city in the last half century, or without hot water.
NYCHA admitted in the pending consent decree that more than 320,000 NYCHA residents went without heat or hot water at some point between October 2017 and January.
The plaintiffs allege that NYCHA, New York City’s biggest landlord, violated the warranty of habitability, an implied right in New York leases requiring landlords to provide heat and hot water, and say they should be entitled to rent refunds.
Edmead’s bench ruling was a victory for NYCHA, which has recently taken its share of drubbings in the courts of law and public opinion over poor and dangerous living conditions in its public housing stock.
In 2014, the authority settled a class-action suit brought by residents regarding mold contamination in NYCHA buildings with a consent decree that included the appointment of a special master and required repairs to NYCHA units, but the authority fell out of compliance with the terms not long after the decree was issued.
In 2015, NYCHA became the target of a probe by the U.S. Attorney’s Office for the Southern District of New York over health and safety issues in public housing that included elevated levels of lead in residents’ blood, and it was later revealed that, from 2010 to 2016, NYCHA falsified reports to the U.S. Department of Housing and Urban Development about required inspections for lead paint.
This past summer, NYCHA brokered another consent decree with the Southern District U.S. Attorney’s Office in which it has agreed to invest more than $1 billion in repairs and to oversight by a federal monitor.
NYCHA is also the target of a proposed class-action suit regarding lead paint, A few weeks ago, Pauley, who also presides over the class action, upbraided attorneys for NYCHA when they suggested in court papers that parents who are NYCHA residents knowingly put their kids in harms way by moving into NYCHA units since the various health and safety issues present there are public knowledge.
Pauley told the NYCHA lawyers to amend their filing to drop that claim under threat of sanctions.
In April, Gov. Andrew Cuomo declared a state of emergency for NYCHA, and Shola Olatoye, the housing authority’s chairwoman and CEO, announced she would step down from her post.
Also in April, Edmead ruled in another state lawsuit against NYCHA to grant a preliminary injunction to require NYCHA to conduct lead paint inspections in thousands of its units.
But NYCHA had better luck with Edmead on Friday in the suit over lost heat.
Miriam Skolnik of Herzfeld & Rubin, who appeared for NYCHA, argued battling a certified class would usurp money from the housing authority that could go to improving conditions for tenants and that the city’s housing or civil courts would be better suited to hear their claims.
“NYCHA’s leadership remains committed to meeting its obligations to better serve our residents,” said NYCHA spokeswoman Robin Levine. “In the last six months, we have made capital investments, enhanced staffing and management, and improved communications with tenants to expedite repairs, streamline reporting, and stop outages before they happen.”
Shaimaa Hussein, an associate with Willkie Farr, presented arguments on behalf of the plaintiffs. She said that Willkie Farr and Legal Aid attorneys working on the case will continue fighting for NYCHA residents who experienced service outages last winter as well as those who face outages in the current season.