Opinion
1135/2017
03-28-2017
Rebirth of Bergen Street Block Association, DEAN STREET BLOCK ASSOCIATION; CONSUELA LAWLESS; IVY M. AGARD; OMAR BARNETT; JENNIFER CATTO; LYNN CAVE; AUDRA JONES; ADI FLESHER; ELIZABETH MANEJIAS; LISA JEAN MOORE; SANDY TAGGERT; CHARLES LEE; ALEX ROSS; DEVON NOLA; REV. DR. BRONCO WILKES-CROOKE; NORMAN CROOKE; CHARLES MOSS; JOVANNI GOLSTON; JUANITA GOLSTON; ANDREW HAYLES; MARCUS ROMAN; JESSICA CRUZ; LESLIE GIST; TIMOTHEE LETOUZE; TERESA BOWEN-SPENELLI; JEFFREY LALLEMAND; DEBBIE BOWEN-SPENELLI; MICHAEL RYAN; PAULA OVERBAY; AND B. STAR DAVIS, Petitioners, v. The City of New York ("NYC"); STEVEN BANKS, Commission for the Department of Homeless Services of NYC ("DHS"); CORE SERVICES GROUP, INC.; AND CSN PARTNERS, L.P. ; and "XYZ" CORP.;* Respondents. *XYZ Corp is fictitious and unknown to Petitioners. The entity being whomsoever is in contract with NYC.
Attorney for Petitioners Jacqueline McMickens, Esq. 26 Court Street, Suite 1600 Brooklyn, NY 11242 Attorney for Respondents Zachary W. Carter Corporation Counsel of the City of NY 100 Church Street New York, NY 10007
Attorney for Petitioners Jacqueline McMickens, Esq. 26 Court Street, Suite 1600 Brooklyn, NY 11242 Attorney for Respondents Zachary W. Carter Corporation Counsel of the City of NY 100 Church Street New York, NY 10007 Katherine A. Levine, J.
The Temporary Restraining Order (TRO) issued by Justice Wooten on March 24, 2017, staying the City from opening a shelter for 104 men at 1173 Bergen Street ("Bergen Street") is hereby extended until the Court has had an opportunity to review the Fair Share Analysis ("Analysis") submitted by the respondent City of New York ("City") as well as forthcoming legal papers.
Petitioners Rebirth of Bergen Street Block Association, et al. ("petitioners" or "Rebirth") seek to enjoin respondents City of NY, and the Department of Homeless Services ("DHS") ("city respondents" or "City") from opening a homeless shelter at Bergen Street in the Crown Heights section of Brooklyn. Petitioners claim that their neighborhood is already overburdened and saturated with homeless shelters and that DHS failed to conduct a Fair Share review in accordance with the Fair Share Criteria contained in § 203 of the NYC Charter, and Title 62, Appendix A of the Rules of the City of New York, or environmental reviews in compliance with the State Environmental Quality Review Act ("SEQRA") and the City Environmental Quality Review ("CEQR").
On March 28th, right before oral argument, the City submitted a voluminous Verified Answer which contained its lengthy Fair Share Analysis of the Bergen Street Shelter. The Court granted petitioners the opportunity to amend their Petition to respond to and/or challenge the findings of the Analysis, since the crux of petitioner's argument, from the inception of this matter is that Crown Heights is overburdened by homeless shelters and ancillary mental health facilities such that it should not have to incorporate another homeless shelter into its infrastructure, and that if the injunction is not granted, they will suffer irreparable harm in the nature of loitering, littering, overtaxing of municipal services and an increase in crime.
In order to obtain a preliminary injunction pursuant to CPLR § 6301, petitioners must clearly demonstrate (1) a likelihood of success of on the merits, (2) irreparable injury absent granting of the preliminary injunction, and (3) a balancing of the equities tipping in favor of the moving party. Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 NY3d 839 (2005); Doe v Alexrod, 73 NY2d 748, 750 (1988); Vanderbilt Brookland, LLC v Vanderbilt Myrtle, Inc., 2017 NY Slip Op 01402, 2017 NY App. Div. LEXIS 1384 (2nd Dept. 2017). The purpose of a preliminary injunction is to maintain the status quo, as opposed to determining the ultimate rights of the parties. Wheaton/TMW Fourth Ave, LP v NYC Dept. Of Building, 65 AD3d 1051, 1052 (2nd Dept. 2009); Mtr. Of Chelsea Business & Property Owners Assn, LLC v. City of NY, 2011 NY Slip Op 31946(U). 2011 NY Misc. LEXIS 3510 (Sup. Ct., NY Co. 2011).
At this juncture, this Court finds that petitioners have demonstrated a likelihood of success on the merits of their claim that the City did not comply with the Fair Share Criteria. Based upon oral argument tendered today as well as the papers previously submitted by the parties, the petitioners have made a prima facie showing that the City may have flagrantly disregarded the Fair Share Criteria so as to give rise to a cause of action. See, Matter of Bloomberg v Liu, 133 AD3d 414, 414-415 (1st Dept. 2015). Specifically, petitioners submitted unrefuted evidence that of the 90 homeless shelters that the city intends to open pursuant to the Mayor's Homelessness Plan ("the City Plan") released to the public on February 28, 2017, three of five shelters have already opened or are set to open in the Crown Heights, Prospect Heights vicinity. Nor has the City, to date, refuted petitioner's contention that the Crown Heights community is already inundated with other city facilities that provide shelters or other services for the homeless population. While the petitioners concededly strained to show actual irreparable injury, the Court notes that at this juncture it would be essentially impossible to make such a showing as the Center has not yet opened. However, petitioners did show that the Bergen Street facility is right next to a public school and did assert a panoply of problems created by the numerous other shelters in the community, including increased crime, garbage, and loitering which can reasonably be expected to be exacerbated by the opening of an additional shelter in the area.
This determination is being made with out the Court having the benefit of considering the just completed Review and the petitioners Response, which may change the outcome of this case and will be the subject of additional oral argument.
The City's contention that it will be irreparably harmed if the stay is not lifted is based upon its argument that the City generically faces a homelessness crisis, and that by not allowing the transfer of 104 men from their existing shelters into Bergen Street, the City will lose its ability to place currently homeless gentleman into the seats that will be created by the transfer of men into Bergen Street. However, the homeless crisis has existed for many years, the new Plan was just introduced to the public at the end of February 2017, and there is no new immediate exigency caused by a delay in opening this shelter
In balancing the equities, petitioner has the stronger case. The City contends that the shelter at Bergen Street will serve individuals from the Crown Heights neighborhood. However, during the hearing, the DHS admitted that only one third (1/3) of the individuals the City seeks to shelter at Bergen Street are from Community Boards 3 or 8 in Crown Heights. The remaining individuals may come from other Brooklyn neighborhoods. The City's main justification for this shelter is that it received a Request for Proposal ("RFP") for this specific location. The Court notes that the City failed to produce any evidence that RFPs for homeless shelters in other areas of Brooklyn are on the horizon. In any event, the City's use of an open ended RFP process in which private parties present shelter sites to the City does not relieve it of the requirement to comply with the Fair Share Criteria. Ocean Hill Residents Assn. v City of New York, 32011 NY Slip Op 52179(U), 3 Misc 3d 1230(A), 1230A (Sup. Ct. Kings Co. 2011). Article 6.53(a) of the Criteria require the City to consider whether the facility, "in combination with other similar city and non-city facilities within a defined area surrounding the site (approximately a half-mile radius, adjusted for significant physical boundaries), would have a significant cumulative negative impact on neighborhood character." 62 RCNY § Appx. A to Title 62 Article 6.53(a).
The balancing of the equities further requires the Court to determine the relative prejudice to each party which would result from a grant or denial of the requested relief. Barbes Rest. Inc. v ASRR Suzer 218, LLC, 140 AD3d 430, 432 (1st Dept. 2016). In this regard, a court must consider whether the preliminary injunction would upset or maintain the status quo. See, Amelius v Grand Imperial LLC, 2016 NY Slip Op 32330(U), 2016 NY Misc. LEXIS 4383 (Sup. Ct. NY Co. 2016). It makes no sense for this Court to upset the status quo ante, created by the stay issued by Justice Wooten. To displace 104 men from their existing shelters into the Bergen Street Shelter, only to dislocate them again should the Court ultimately find that the Fair Share Criteria have not been met would be unconscionable.
Accordingly, the stay remains in effect pending submissions to be reviewed by the Court and further oral argument. This constitutes the Decision and Order of the Court. Dated: March 28, 2017
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Katherine A. Levine
Justice Supreme Court