ALBANY – The Bloomberg administration’s attempt to introduce new eligibility restrictions for single adults seeking temporary admission to New York City’s homeless shelters was rejected Tuesday by the state’s highest court.
The rules require single adults to show they cannot afford to pay for housing and have no other place to go before gaining access to shelters.
The 6-0 court held in Matter of the Council of the City of New York v. Department of Homeless Services, 193, that the restrictions were not adopted according to the City Administrative Procedure Act (CAPA).
CAPA requires city agencies to give the public at least 30 days’ notice of adoption of an impending rule and to hold a public hearing prior to implementation.
The court said in a ruling written by Judge Victoria Graffeo (See Profile) that it is “undisputed” that the Department of Homeless Services (DHS) failed to follow the CAPA guidelines when it sought to introduce its Eligibility Procedure requirement.
“The policy is clearly intended for broad application—it pertains to all single adult applicants who seek THA [Temporary Housing Assistance],” Graffeo wrote. “Mandatory procedures and uniform standards of this type have generally been determined to be rules under our precedent.”
The court rejected Homeless Services’ two arguments in defense of the way the eligibility procedure was adopted: that the procedure is not a “rule” subject to CAPA’s guidelines or that it falls under an exemption to CAPA’s mandates.
The procedures that were to be followed by Department of Homeless Services’ personnel when screening applicants for admission at shelters are “mandatory,” despite the city’s claim that the procedures were up to the discretion of intake employees, the court held.
“All intake workers must follow it, regardless of the circumstances presented by an individual applicant, and many of the standards articulated in it are mandatory in the sense that their application will dictate whether an individual will or will not receive benefits,” Graffeo wrote.
The Court of Appeals also said that, contrary to the Bloomberg administration’s contention, Homeless Services must still comply with the CAPA requirements even if it believes the new rules were forced upon the city by a state mandate on eligibility for publicly assisted shelter.
“To the extent DHS’s hands are tied in some respects due to certain strict standards found in the pertinent State regulations, the agency can assert this point during the regulatory review process,” Graffeo wrote.
Chief Judge Jonathan Lippman (See Profile) and Judges Susan Phillips Read (See Profile), Robert Smith (See Profile), Eugene Pigott Jr. (See Profile) and Jenny Rivera (See Profile) were in the majority. Judge Sheila Abdus-Salaam (See Profile) took no part.
The ruling affirmed the rejection of the new homeless shelter eligibility rules by Manhattan Supreme Court Justice Judith Gische (See Profile) (NYLJ, Feb. 22, 2012) and a unanimous Appellate Division, First Department panel (NYLJ, Feb. 15, 2013).
In its brief challenging the rules, the City Council argued that the eligibility procedure would overturn 15 years of practice where homeless adults have been allowed admission to shelters without passing a needs test or, indeed, even having to show identification.
The City Council also argued that, by the Department of Homeless Service’s own estimate, at least 10 percent and as many as 60 percent of the single adults using homeless shelters could lose access to those accommodations if the eligibility procedure went into effect.
Jeffrey Metzler argued on behalf of the City Council.
City Council Speaker Christine Quinn called the ruling an “important victory” for homeless adults and for “the principles of openness and accountability” that are codified in CAPA.
“As the Court rightly held, the Mayor cannot unilaterally impose policies that would have such significant impact without even notifying the public or receiving comments,” Quinn said in a statement.
Assistant Corporation Counsel Ronald Sternberg represented the Department of Homeless Services.
“Shelter should be a last resort, when all other resources have been exhausted,” said Thomas Crane, chief of the corporation counsel’s General Litigation Division in a statement Tuesday. “We are disappointed with the Court’s decision today.”
The City Council’s case had been paired throughout the litigation against the homeless eligibility rules with a similar challenge brought by the Legal Aid Society, Callahan v. Carey. While the city appealed the First Department’s ruling in the City Council case, it did not appeal in Callahan.
Steven Banks, attorney-in-chief of the Legal Aid Society, said Tuesday’s ruling “stands for the proposition that city agencies can’t do an end run around proper procedures when promulgating a rule.”
Banks said if the city takes another run at implementing the eligibility rule, his group is prepared to renew the Callahan claim that such needs tests violate a 1981 consent decree the city signed guaranteeing access to homeless services for the destitute in New York City.
Terror Bomb Award
In another ruling Tuesday, the court held 4-2 that an Appellate Division, First Department panel erred in vacating a $4.4 million judgment against the Port Authority of New York and New Jersey for injuries suffered by a woman in the 1993 terrorist bombing of the World Trade Center.
The majority of the court decided in Nash v. Port Authority of New York and New Jersey, 238, that the First Department had improperly used as authority to dismiss the 2010 Nash verdict the Court of Appeals’ 2011 ruling in Matter of World Trade Center Bombing Litig. (Ruiz), 17 NY3d 428.
The court said its decision in Ruiz did not render the earlier verdict won by Nash null and void, as the Port Authority maintained, or that the Port Authority was precluded from arguing that Ruiz could be applied to Nash’s claim, as she contended.
The court sent the matter back to Supreme Court for consideration of the validity of Nash’s award in light of Ruiz and the application of CPLR 5015.
Because Lippman, Rivera and Abdus-Salaam took no part in the Nash ruling, the court enlisted the services of Fourth Department Presiding Justice Henry Scudder (See Profile) and Third Department Presiding Justice Karen Peters (See Profile) to ensure that it would have a majority ruling Tuesday.
Pigott, Read, Smith and Scudder were in the majority.
Peters joined in a Graffeo dissent in which Graffeo wrote the Nash determination was final when it was not appealed by the Port Authority and should stand.
Louis Mangone represented Nash. Gregory Silbert of Weil, Gotshal & Manges argued for the Port Authority.
Also Tuesday, the court held 6-0 in DeVito v. Feliciano, 195, that an uncalled witness’ testimony may properly be considered cumulative only when it is cumulative of testimony or other evidence favoring the party controlling the witness.
The question arose over whether the trial judge erred by refusing to give an uncalled witness charge when an attending physician was not called to the stand in an auto accident liability trial. The judge said the testimony would be cumulative of that offered by other medical witnesses.
But the court said in a decision written by Pigott that the trial judge was in error and ordered a new trial.
“In short, a witness’ testimony may not be ruled cumulative simply on the ground that it would be cumulative of the opposing witness’ testimony,” Pigott wrote.
Lippman, Graffeo, Read, Smith and Rivera concurred. Abdus- Salaam took no part.
Brian Isaac of Pollock, Pollock, Isaac & DeCiccio represented injured motorist Teresa DeVito.
Michael Gottlieb of the Bronx argued for Dennis Feliciano, who drove the Paragon Cable Manhattan van that injured DeVito in a 2006 accident in Manhattan,
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