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FILED: ROCKLAND COUNTY CLERK 09/28/2021 11:55 PM INDEX NO. 034885/2021
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 09/28/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
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HELLO LIVING DEVELOPER NOSTRAND LLC and Index No. 034885/2021
HELLO NOSTRAND LLC,
Plaintiffs,
-against-
1580 NOSTRAND MEZZ, LLC,
MADISON REALTY CAPITAL, L.P.,
Defendants.
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I, Eli Karp, because of my religious beliefs which do not permit me to swear, affirm the
following:
1. I am the managing member of plaintiffs Hello Living Developer Nostrand LLC
(“Hello Developer”) and Hello Nostrand LLC (“Hello Nostrand”) and as such, I am familiar with
the facts and circumstances stated herein.
2. I submit this affirmation in further support of the motion of Hello Developer and
Hello Nostrand for a preliminary injunction enjoining the commercially unreasonable UCC sale
of the collateral consisting of Hello Developer’s membership interest in Hello Nostrand
(hereafter the “Collateral”), which is the owner of a certain building designated as 1580 Nostrand
Avenue, Brooklyn, New York a/k/a 21 East 29 Street, Brooklyn, New York (hereafter the
“Building”) and the owner of the adjoining vacant lot designated as 1580 Nostrand Avenue,
Brooklyn, New York (hereafter the “Adjoining Vacant Land”).
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3. The business of Hello Developer and Hello Nostrand is the construction and leasing of
buildings to the New York City Department of Homeless Services (“DHS”) for use as homeless
shelters in Brooklyn, working with non-profit organizations designated by DHS.
4. Without injunctive relief, Hello Nostrand and Hello Developer will suffer irreparable
harm because their business of providing homeless shelters to DHS will be permanently
destroyed, and the 93 homeless families with minor children who are scheduled to start living in
the shelter as early as the end of October 2021 will be displaced, contributing to the acute
homeless crisis in the City of New York that has been made worst by the ongoing Covid-19
pandemic.
I. The Three Types of Homeless Shelters And The Constitutional Right
Under The New York State Constitution of Every Person To Shelter
5. DHS operates homeless shelters through three different systems: one for single adults
(men and female in separate facilities); one for families with minor children; and one for adult
families (related individuals with no minor children).1
6. I am advised by counsel that under Article XVII, Section 1 of the New York
Constitution, the City of New York, acting through DHS, is required to provide “aid, care and
support to the needy.”
7. I am further advised by counsel that New York courts have interpreted this provision
of the New York Constitution to include the provision of shelter placements to individuals who
are homeless.2
1
See Sandra Butler, et. al. v.City of New York, et. al., United States District Court, Southern District of New York,
15-cv-03783 (VEC), ECF-28-2.
2
DHS on its website at www.1nyc.gov/site/dhs/shelter/shelter.page states that “[g]overned by a unique right to
shelter mandate, New York City provides temporary emergency shelter to every man, woman, and child who is
eligible for services, every night.
This policy sets New York apart from municipalities across the nation-many of
which turn homeless individuals and families away once shelters have filled up or simply put their names on a
waiting list.”
2
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II. DHS Has Designated The Shelter By Hello Nostrand
And Hello Developer As Hello Nostrand Opportunity
Which Is Scheduled To Open At The End Of October 2021
A. The Negotiations Between DHS And Hello Nostrand,
Hello Developer, And Eli Karp For The Homeless Shelter
8. On December 10, 2020, as the Building was nearing its completion, after several
discussions with DHS concerning the operation of a homeless shelter at the Building, I wrote to
Mr. Vincent Pullo, Chief Contracting Officer for DHS, to confirm that Hello Nostrand would be
working with the designated not-profit organizations, Practice of Peace Foundation, Inc. and
Perigrove Inc., in operating the shelter if the Building was selected by DHS as a homeless shelter
for families with minor children.
9. My letter to Mr. Pullo stated, in relevant part, the following:
This letter is written in response to your request for the owner of 1580 Nostrand
Avenue aka 21 East 29th Street Brooklyn, NY to confirm that the Practice of
Peace Foundation, Inc. is the only organization with site control to enter into an
agreement with NYC Department of Homeless Services to provide Shelter &
Overnight Facility Housing for Homeless Families with Children. . . .
Practice of Peace Foundation, Inc Perigrove Inc., and Hello Nostrand LLC, are
working together to prepare the building for occupancy to house the homeless and
look forward to a long relationship with DHS. . . .
(A copy of my December 10, 2020 letter to Mr. Pullo is annexed hereto as Exhibit “A”).3
10. On January 6, 2021, Mr. Gus Jackson, Deputy Director of Families with Children
Capacity, Division of Capacity Planning and Development for DHS, sent an email to Isaac
Lefkowitz, of Perigrove Inc., a copy of which I received.
3
Certain confidential information has been redacted from this Exhibit, and the unredacted version of this Exhibit is
available for review by the Court in camera.
3
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11. Mr. Jackson’s email inquired as to whether the Building was completed and whether
the Building had obtained a temporary certificate of occupancy (“TCO”), and it provided, in
relevant part, as follows:4
Happy New Year Isaac,
I hope you and your family have been doing well. I am reaching out to you to
follow up on the construction completion status of Nostrand Ave. How is the
status of the TCO coming along? If you have already received it, can you please
submit a copy of the TCO to me for our own records and contract registration?
Also, I would like to visit Nostrand to conduct a quick walkthrough of the
building just to get eyes on the site and take pictures to help coordinate the initial
OTDA/FDNY walkthrough. Does Tuesday, 1/26 at 10 am work for you?
(A copy of the January 6, 2021 email chain from Mr. Jackson is annexed hereto as Exhibit “B”).
12. In response to the January 6, 2021 email from Mr. Jackson, I sent him an email, also
on January 6, 2021, confirming to him that the Building was completed, that I was attempting to
obtain the TCO for the Building, and I sent him some pictures of the completed Building.
13. My January 6, 2021 email to Mr. Jackson stated, in relevant part, the following:
Regarding the Nostrand Project. The project is Completed. The final sidewalks
being completed now. We have some of the inspections lined up this month, the
faster we get the DOB appointments the faster we can obtain TCO. I’m pushing to
get TCO still this month.
I’m attaching some pics as well, I’m on site everyday Let me know when you
would like to pass by & I'll arrange it. . . .
(See Exhibit “A” annexed hereto).
14. In response, Mr. Jackson sent me an email on January 7, 2021 which stated the
following:
Good Morning Eli,
Thank you for the pictures and the updates. If there are any barriers in obtaining
the TCO, please let me know as we may be able to assist with this. As far as the
4
Families With Children Capacity is the description which DHS uses for homeless shelters for families with minor
children.
4
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site visit, lets schedule this for Tuesday, 1/26 at 10 am. I will circulate a calendar
invite shortly.
(See Exhibit “B” annexed hereto).
15. On February 9, 2021, as part of the process of the Building being operated as a
homeless shelter for families with minor children, Mr. Jackson sent Mr. Isaac Lefkowitz and I an
email which stated the following:
Hi Eli and Isaac,
Can you please submit the building plans for 21 E. 29th Street (Nostrand Ave)?
Similarly to all newly contracted families with children sites, we have an internal
unit that can draft a rightsizing report based on the building plans during COVID.
As we are nearing the TCO inspection and construction completion, I would like
for this unit to do the same for this site as well before operation. (Emphasis
added).
(A copy of the February 9, 2021 email chain from Mr. Jackson is annexed hereto as Exhibit
“C”).
16. Subsequently, I discovered that the not-for-profit organization that DHS was working
with to operate the Building, as a homeless shelter for families with minor children, was
Westchester Community Opportunity Program, Inc. (“WestCop”), and after I was informed by
DHS of this, I was required to confirm in writing to DHS that WestCop would be the only not-
for-profit organization that would be working with Hello Nostrand to operate the Building as a
shelter.
17. Accordingly, on February 2, 2021, I wrote the following letter to Ms. Courtney
Nelson, Executive Director of Families with Children Capacity in which I stated, in relevant part,
the following:
Dear Courtney,
This letter is written in response to your request for the owner of 1580 Nostrand
Avenue aka 21 East 29th Street Brooklyn, NY to confirm that Westcop, Inc. is the
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only organization with site control to enter into an agreement with NYC
Department of Homeless Services to provide Shelter & Overnight Facility
Housing for Homeless Families with Children.
Westcop, Inc and Hello Nostrand LLC, are working together to prepare the
building for occupancy to house the homeless and look forward to a long
relationship with DHS. . . .
(A copy of my February 2, 2021 letter to Ms. Nelson is annexed hereto as Exhibit “D”).
B. The Selection By DHS of The Building As A Homeless
Shelter For Families With Minor Children
18. Subsequently, on March 4, 2021, Ms. Nelson, on behalf of DHS, approved the
Building for a homeless shelter for families with minor children with WestCop, as the not-for-
profit organization.
19. Ms. Nelson’s letter approving the Building as a homeless shelter for families with
minor children provided, in relevant part, as follows:
The New York City Department of Homeless Services (DHS) has received and
selected the proposal from Westchester Community Opportunity Program, Inc.
(WestCOP) to operate a 93 unit shelter for families with children at 21 East 29th
Street, Brooklyn, NY, 11226. . . . (Emphasis added).
Currently, we are negotiating the operations budget. Please note that the budget
will be effective once fully negotiated and approved, and the subsequent
registration of the five-year contract by the New York City Office of the
Comptroller.
(A copy of Ms. Nelson’s March 4, 2021 letter is annexed hereto as Exhibit “E”).5
20. Importantly, before the Building could start operating as a homeless shelter it had to
pass an inspection by the New York State, Office of Temporary And Disability Assistance
(“OTDA”), Department of Shelter Oversight And Compliance.
21. On April 16, 2021, OTDA conducted an inspection of the Building at which I was
present, and the Building past that inspection subject to some final corrective work which had to
5
Certain confidential information has been redacted from this Exhibit, and the unredacted version of this Exhibit is
available for review by the Court in camera.
6
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be completed. (A copy of the Findings Statement For Proposed Facilities of April 16, 2021
which was prepared by OTDA after its inspection of the Building is annexed hereto as Exhibit
“F”).
22. Following the approval by OTDA of the Building for use as a homeless shelter for
families with minor children, I continued working diligently to get the Building ready for
operation as a homeless shelter.
C. DHS Designated The Building Hello Nostrand
Opportunity As The Name For The Homeless Shelter
23. Even after defendants 1580 Nostrand Mezz, LLC and Madison Realty Capital, L.P.
served the UCC notice of sale on July 14, 2021, I continued to work diligently to get the
Building ready for its opening as a homeless shelter for families with minor children.
24. The Building will be part of DHS’s opportunity program designed to get each of the
93 families with children back on their feet.6
25. The opportunity program, which will be an integral part of the homeless shelter, will
feature caseworkers to assist each of the families to find employment and permanent housing.
26. The idea behind the opportunity program is to provide the families with minor
children with a different kind of homeless shelter experience which will help them rehabilitate
themselves and move on to live productive lives.
27. Thus, DHS has decided to name the shelter that will be operated at the Building
Hello Nostrand Opportunity.
6
There are 93 separate apartments in the building. However, since the shelter is not designed as permanent housing
for homeless families, the families residing in the building will be constantly changing as each family finds
permanent housing.
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D. The Day Care Center And the Other Amenities The Building
Will Have As A Homeless Shelter
28. The reason that DHS decided to name the homeless shelter that will be operated at
the Building Hello Nostrand Opportunity is because the Building is at the core of the opportunity
program that will be a feature of the shelter.
29. In the minds of many people, when they think of homeless shelters, they think of
warehouses for the homeless, which are filthy and infested with all kinds of rodents.
30. The Building is a high-quality construction consisting of 93 separate apartments for
each of the homeless families with minor children that will be living there.
31. Each apartment features a large terrace in front and back, with some of the
apartments being 2, 3 and 4 bedrooms. (See Exhibit “A” annexed hereto).
32. Also, I am working with a DHS designated not-for-profit organization to turn the
first floor of the Building, consisting of 7,000 square feet, into a daycare center for the
preschool-age children who will be living in the shelter.
33. The daycare center will be a safe and communal place where the preschoolers can be
left while their parents are away from the shelter, either looking for employment or working so
that the families can eventually move out of the shelter.
34. Critically, the daycare center will be open to all preschoolers in the neighborhood,
with priority given to preschoolers living in the shelter.
35. DHS has insisted that the daycare center be open to all preschoolers in the
neighborhood so that the preschoolers living in the shelter can feel integrated with the other
preschoolers from the neighborhood so as to foster a sense of community between the residents
of the neighborhood and the residents of the shelter.
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36. Importantly, working with an independent contractor, I have already wired every
apartment in the Building with the internet so that each family in the shelter will have access to
the internet, a utility which is so critical with the ongoing Covid-19 pandemic that has often
necessitated remote learning for school children in New York City.
37. In wiring each apartment with the internet, I was determined to avoid digital inequity
which has become more pronounced during the Covid-19 pandemic as individuals in poor
neighborhoods lack the same access to the internet, with all of the corresponding benefits, as
individuals living in wealthy neighborhoods.7
E. DHS Has Made The Final Designation Of The Not-For-Profit
Organization To Operate The Building As A Homeless Shelter
38. The Building is scheduled to open as a homeless shelter for families with minor
children by the end of October 2021. It was anticipated that the opening would have taken
placed in mid-September, 2021, but, in late August 2021, WestCop unexpectedly had to
withdraw from the operation of the shelter.
39. In response, DHS designated the Children’s Rescue Fund (“CRF”) as the not-for-
profit organization that would be operating the homeless shelter at the Building, and on August
31, 2021, Ms. Nelson sent me a letter to that effect. Ms. Nelson’s letter provided, in relevant
part, as follows:
I want to introduce you to Tahisha Salmon Lue-Hing, who is the vice president of
operations at the Children’s Rescue Fund (CRF). I have given her the preliminary
details and some background on the Nostrand Avenue project, but wanted to
facilitate a call with you all for this week based on my below availability to
discuss the option of them operating this site for families’ shelter. Following that
initial call, you all should feel free to continue the discussion now that you’re
connected.
7
See California Management Review, Coronavirus and the widening educational digital divide: The perfect Storm
for inequalities? ( July 31, 2020) https://cmr.berkeley.edu/2020/07/covid-education.
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Please let me know which date/time works best and I will provide the call in
details.
Wednesday @ 9am, 10am, noon, or 2pm
Thursday @ 9am, 11am, 1pm
Friday @ 1pm
Hope to hear from you all soon. Thanks.
(A copy of Ms. Nelson’s August 31, 2021 letter is annexed hereto as Exhibit “G”).
40. After several telephone discussions with Ms. Nelson and representatives from the
Children’s Rescue Fund, on September 10, 2021, I sent a letter to DHS confirming that Hello
Nostrand will be working only with the Children’s Rescue Fund to operate the homeless shelter
for families with minor children at the Building.
41. My letter to Ms. Nelson provided, in relevant part, as follows:
This letter is written in response to your request for the ownership Hello Nostrand
LLC located at 21 East 29th Street Brooklyn, NY, to confirm that the Children’s
Rescue Fund is the only organization with site control to enter into an agreement
with NYC Department of Homeless Services to provide Shelter & Overnight
Facility Housing for Homeless Families with Children.
Hello Nostrand LLC, and Children’s Rescue Fund, will be working together to
prepare the 93 unit building for occupancy to house the homeless Families with
Children and look forward to a long working relationship with DHS. . . .
(A copy of my September 10, 2021 letter to Ms. Nelson is annexed hereto as Exhibit “H”).
F. The City Has Already Approved The Start-up Budget
To Get The Building Shelter-ready For Its Opening As
A Homeless Shelter By The End of October 2021
42. On September 17, 2021, after the Children’s Rescue Fund was designated as DHS’s
not-for-profit organization for the shelter, Ms. Nelson sent me, and my assistant, an email
requesting a telephone conference call for September 23, 2021 with representatives of the
Children’s Rescue Fund to finalize the details to get the Building shelter-ready for an opening at
the end of October 2021.
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43. The email from Ms. Nelson provided as follows:
Hi Eli/Florian,
Are you all free to do a call on Thursday at 10am with CRF as well?
Thanks,
(A copy of Ms. Nelson’s September 17, 2021 email is annexed hereto as Exhibit “I”).
44. During the telephone call on Thursday, September 23, 2021, with Ms. Nelson and
representatives of the Children’s Rescue Fund, she confirmed that the City had already approved
the start-up budget to make the Building shelter-ready, and she gave me a list of items required
by DHS specifically for the Building since the shelter will be occupied by minor children.
45. The list of safety items includes, among other things, having all of the windows
frosted; all appliances have to be anchored in place; stronger shower curtains; additional safety
rails on the terraces; and fire hydrants in each apartment.
46. In addition, Ms. Nelson indicated that DHS would require additional security
cameras to be placed throughout the Building and its parameters and that the offices for the
caseworkers would have to be relocated from the basement to another floor in the Building.8
47. Once all these items are addressed, Ms. Nelson indicated there would be a final
inspection of the Building by OTDA, and assuming that it passes that inspection, the Building
will be ready to open at the end of October 2021 as a homeless shelter for families with minor
children.
8
I am not sure that there will be space on the first floor of the Building, with the day care center, for the offices for
the case workers.
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G. The Construction of Another Homeless
Shelter On The Adjoining Vacant Land
48. Even before the opening of the Building as a homeless shelter for families with
minor children, I am already in discussions with DHS to construct another shelter on the
Adjoining Vacant Land.
49. Based upon the preliminary plans and projections, the second homeless shelter to be
constructed on the Adjoining Vacant Land would consist of 114 units, it would be integrated
with the homeless shelter that will be operated in the Building and it will have the same unique
open concept designs and similar amenities.
50. Also, the preschoolers who will be living in the new shelter will be eligible for
enrollment in the daycare center in the Building.
51. In addition, the homeless shelter that will be constructed on the Adjoining Vacant
Land will also have caseworkers to provide counseling to the families on finding employment
and permanent housing so that they can get back on their feet.
III. The Covid-19 Pandemic Has Made The Need For Additional
Homeless Shelters In New York City Urgent
52. The ongoing homeless crisis in New York City has been made worst by the Covid-19
pandemic, and, therefore, the need for additional homeless shelters is urgent.
53. Significantly, there have been several lawsuits against the City of New York and
DHS concerning homeless shelters and the need to contain the spread of Covid-19 among the
city’s homeless population.
54. For example, in Morleen Fisher, et. al. v. The City of New York, et. al., Supreme
Court, New York County, Index No. 452069/2020 (hereafter the “Morleen Fisher Action”), the
homeless petitioners commenced a hybrid Article 78 proceeding to compel the City and DHS to
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house the city’s homeless population in single occupancy hotel rooms which became vacant due
to low occupancy rates for hotels caused by the Covid-19 pandemic.
55. In their complaint, the petitioners in the Morleen Fisher Action alleged, among other
things the following:
Petitioners bring this case to remedy the failures of Respondents City of New
York, the New York City Department of Social Services (“DSS”), and its
subdivision, the New York City Department of Homeless Services (“DHS”), to
take appropriate action to temporarily provide shelter placements to single adults
that are free of significant health risks during the course of the COVID-19
pandemic. . . .
Because most individuals staying in DHS shelters are forced to live, eat, and sleep
in close quarters with so many others during the pandemic, the age-adjusted
COVID-19 mortality rate for sheltered single adults through August 2020 is 409
deaths per 100,000 people, which is 80 percent higher than the general population
of New York City. . . .
Individual Petitioners and other single adult homeless New Yorkers cannot safely
socially distance while living in congregate shelters where they are required to
share sleeping areas, bathrooms, dining space and other living facilities with
unrelated adults. . . .
Despite an abundance of vacant hotel rooms—to the point where some hotels are
in danger of permanently closing—and federal funding expressly available for
this exact purpose, the Respondents have taken only half-measures to protect the
individual Petitioners and other single adult homeless individuals in a timely,
measured, and effective manner. . . .
In an attempt to remedy their prior failure to de-densify their shelters,
Respondents directed their non-profit agent shelter providers to quickly choose
who among their residents would get hotel rooms and who would remain in a
congregate shelter setting. . . .
Prior to SARS-CoV-2’s arrival in the United States, New York City was already
grappling with record-breaking levels of homelessness. Due to the ongoing
shortage of affordable and accessible housing for extremely low-income
individuals in New York City, the number of single homeless adults in shelters
continued to break records during the early months of 2020, before SARS-CoV-2
began to ravage the City.
The connection between stable housing and good health is well-established, and
research continues to show that homeless single adults exhibit poorer health
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outcomes and higher mortality rates than the rest of the population, separate from
the outcomes from the pandemic. . . .
Unsurprisingly, Black and Hispanic/Latinx New Yorkers are disproportionately
affected by homelessness. Eighty-six percent of homeless single adults identify as
Black or Hispanic, which is significantly higher than the 53 percent of New York
City’s population who identify as such. Black and Hispanic/Latinx New Yorkers,
whether housed or unhoused, are significantly more at risk of dying of
coronavirus than white New Yorkers. . . .
Congregate shelter settings, the prevalence of health risk factors among residents,
and the disproportionate number of Black and Hispanic/Latinx New Yorkers who
experience homelessness have led to a mortality rate that is significantly higher
than the general population of New York City. . . .
The type of shelter setting and prevalence of risk factors among homeless people
affect their exposure to SARS-CoV-2 and vulnerability to COVID-19. . . .
(See a copy of the complaint in the Morleen Fisher Action which is annexed as Exhibit “A” to
the accompanying affirmation of Victor A. Worms dated September 27, 2021)(hereafter “Worms
Aff”), ¶¶ 1, 3, 6, 8, 10, 75, 80, 82, 83 & 85).
56. Initially, the City of New York moved homeless individuals from congregate
homeless shelters to two-occupancy hotel rooms, but the petitioners in the Morleen Fisher Action
were seeking to have the City place homeless individuals in single-occupancy hotel rooms, and
the petitioners further alleged in their complaint, among other things, the following:
Petitioner Coalition for the Homeless and the Speaker of the New York City
Council, along with other advocacy and community organizations, urged the
Mayor and DHS to move all homeless individuals out of congregate shelters and
offer single-occupancy hotel rooms to them and to unsheltered New Yorkers in
order to reduce their risk of contracting SARS-CoV-2. . . .
As of July 2020, Respondents had moved approximately 8,700 single adults to de-
densification hotels and left approximately 5,500 single adults in congregate
shelter settings. . . .
Thousands of homeless New Yorkers remain in congregate shelters or double-
occupancy hotel rooms, putting them at greater risk of contracting or spreading
SARS-CoV-2. Individuals in double-occupancy rooms must share bathrooms, eat
in the same enclosed space, and sleep without masks on with adults unrelated to
them, among other activities that could lead to exposure. . . .
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Last month, after residents of Manhattan’s Upper West Side objected to the
presence of de-densification hotels for single adults in their neighborhood, Mayor
de Blasio announced a plan to move the residents of one of these sites, the
Lucerne Hotel, to another Manhattan shelter serving families, many of whom
included someone living with a disability. The Mayor’s plan would have
displaced these families around the City to make room for the men from the
Lucerne.9
(See Exhibit “A” to the Worms Aff., ¶¶ 103,111, 112 & 124).
IV. The Plaintiffs Will Suffer Irreparable Harm If Injunctive Relief Is
Not Granted Because Their Business of Providing Homeless Shelters
To DHS Will Be Permanently Destroyed
57. The business of the plaintiffs is the construction, and leasing to DHS, through its
designated not-for-profit organizations, of homeless shelters for families with minor children.
58. The plaintiffs have completed one shelter for which the City of New York has
already approved the start-up budget, and which is scheduled to open by the end of October
2021.
59. The plaintiffs are working diligently to complete all of the requests by DHS, which
were communicated to them by Ms. Nelson, during the telephone conference call on Thursday,
September 23, 2021, so that the final inspection of the Building by OTDA can be completed.
60. After that inspection, the Building will open as a shelter, and 93 families with minor
children will be able to move in and start the process of getting back on their feet.
61. The business of providing homeless shelter to DHS is not a simple business. In
many ways, this is a business of relationship and trust. The responsible officers at DHS must be
9
On July 13, 2021, a federal judge blocked New York City’s plans to move 8,000 homeless individuals out of
“hotels into barracks-style shelters.”See, The New York Times, N.Y.C.’s Plan To Move Homeless People From
Hotels is Blocked by a Judge (July 26, 2021) https://www.nytimes.com/2021/07/13/nyregion/homeless-hotels-
protests.html. On July 26, 2021, the City resumed moving 8,000 homeless individuals from hotels to homeless
shelters. See, The New York Times, New York Moves Homeless People From Hotels to Shelters as Virus Cases Rise
(July 26, 2021) https://www.nytimes.com/2021/07/26/nyregion/homeless-hotel-shelter-ny.html.
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able to trust and have confidence in the provider of the shelter and be comfortable that the
provider will be providing a safe and high-quality building that will be suitable for the needs of
families with minor children.
62. That relationship of trust and confidence between DHS and the provider takes time to
develop and cultivate. It does not happen overnight. The plaintiffs, and I, have developed that
relationship with DHS.
63. The construction of homeless shelters for DHS is complex because one has to be
familiar with not only the regulations by the New York City Department of Buildings, but also
with DHS’s regulations, and the regulations of the State of New York applicable to homeless
shelters.
64. In addition, as part of providing the Building to DHS for use as a homeless shelter,
the plaintiffs have a continuing obligation to maintain and keep the Building in good structural
repair, among other things.
65. Without injunctive relief, the business of the plaintiffs of providing homeless shelters
to DHS for families with minor children will be permanently destroyed, and the plaintiffs will
suffer irreparable harm.
66. I am advised by counsel that on a motion for injunctive relief, New York courts, in
assessing the balance of the equities, can consider the public interest in granting injunctive relief.
67. To be sure, this is one of those cases in which irreparable harm and the public
interest merges.
68. This is because if injunctive relief is not granted, and there is a sale of the Collateral
not only will the plaintiffs’ business be permanently destroyed, but 93 homeless families with
16
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FILED: ROCKLAND COUNTY CLERK 09/28/2021 11:55 PM INDEX NO. 034885/2021
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FILED: ROCKLAND COUNTY CLERK 09/28/2021 11:55 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 09/28/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND ---------------------------------------------------------------------X HELLO LIVING DEVELOPER NOSTRAND LLC and Index No. 034885/2021 HELLO NOSTRAND LLC, Plaintiffs, -against- 1580 NOSTRAND MEZZ, LLC, MADISON REALTY CAPITAL, L.P., Defendants. --------------------------------------------------------------------X I, Eli Karp, because of my religious beliefs which do not permit me to swear, affirm the following: 1. I am the managing member of plaintiffs Hello Living Developer Nostrand LLC (“Hello Developer”) and Hello Nostrand LLC (“Hello Nostrand”) and as such, I am familiar with the facts and circumstances stated herein. 2. I submit this affirmation in further support of the motion of Hello Developer and Hello Nostrand for a preliminary injunction enjoining the commercially unreasonable UCC sale of the collateral consisting of Hello Developer’s membership interest in Hello Nostrand (hereafter the “Collateral”), which is the owner of a certain building designated as 1580 Nostrand Avenue, Brooklyn, New York a/k/a 21 East 29 Street, Brooklyn, New York (hereafter the “Building”) and the owner of the adjoining vacant lot designated as 1580 Nostrand Avenue, Brooklyn, New York (hereafter the “Adjoining Vacant Land”). 1 of 17 FILED: ROCKLAND COUNTY CLERK 09/28/2021 11:55 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 09/28/2021 3. The business of Hello Developer and Hello Nostrand is the construction and leasing of buildings to the New York City Department of Homeless Services (“DHS”) for use as homeless shelters in Brooklyn, working with non-profit organizations designated by DHS. 4. Without injunctive relief, Hello Nostrand and Hello Developer will suffer irreparable harm because their business of providing homeless shelters to DHS will be permanently destroyed, and the 93 homeless families with minor children who are scheduled to start living in the shelter as early as the end of October 2021 will be displaced, contributing to the acute homeless crisis in the City of New York that has been made worst by the ongoing Covid-19 pandemic. I. The Three Types of Homeless Shelters And The Constitutional Right Under The New York State Constitution of Every Person To Shelter 5. DHS operates homeless shelters through three different systems: one for single adults (men and female in separate facilities); one for families with minor children; and one for adult families (related individuals with no minor children).1 6. I am advised by counsel that under Article XVII, Section 1 of the New York Constitution, the City of New York, acting through DHS, is required to provide “aid, care and support to the needy.” 7. I am further advised by counsel that New York courts have interpreted this provision of the New York Constitution to include the provision of shelter placements to individuals who are homeless.2 1 See Sandra Butler, et. al. v.City of New York, et. al., United States District Court, Southern District of New York, 15-cv-03783 (VEC), ECF-28-2. 2 DHS on its website at www.1nyc.gov/site/dhs/shelter/shelter.page states that “[g]overned by a unique right to shelter mandate, New York City provides temporary emergency shelter to every man, woman, and child who is eligible for services, every night. This policy sets New York apart from municipalities across the nation-many of which turn homeless individuals and families away once shelters have filled up or simply put their names on a waiting list.” 2 2 of 17 FILED: ROCKLAND COUNTY CLERK 09/28/2021 11:55 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 09/28/2021 II. DHS Has Designated The Shelter By Hello Nostrand And Hello Developer As Hello Nostrand Opportunity Which Is Scheduled To Open At The End Of October 2021 A. The Negotiations Between DHS And Hello Nostrand, Hello Developer, And Eli Karp For The Homeless Shelter 8. On December 10, 2020, as the Building was nearing its completion, after several discussions with DHS concerning the operation of a homeless shelter at the Building, I wrote to Mr. Vincent Pullo, Chief Contracting Officer for DHS, to confirm that Hello Nostrand would be working with the designated not-profit organizations, Practice of Peace Foundation, Inc. and Perigrove Inc., in operating the shelter if the Building was selected by DHS as a homeless shelter for families with minor children. 9. My letter to Mr. Pullo stated, in relevant part, the following: This letter is written in response to your request for the owner of 1580 Nostrand Avenue aka 21 East 29th Street Brooklyn, NY to confirm that the Practice of Peace Foundation, Inc. is the only organization with site control to enter into an agreement with NYC Department of Homeless Services to provide Shelter & Overnight Facility Housing for Homeless Families with Children. . . . Practice of Peace Foundation, Inc Perigrove Inc., and Hello Nostrand LLC, are working together to prepare the building for occupancy to house the homeless and look forward to a long relationship with DHS. . . . (A copy of my December 10, 2020 letter to Mr. Pullo is annexed hereto as Exhibit “A”).3 10. On January 6, 2021, Mr. Gus Jackson, Deputy Director of Families with Children Capacity, Division of Capacity Planning and Development for DHS, sent an email to Isaac Lefkowitz, of Perigrove Inc., a copy of which I received. 3 Certain confidential information has been redacted from this Exhibit, and the unredacted version of this Exhibit is available for review by the Court in camera. 3 3 of 17 FILED: ROCKLAND COUNTY CLERK 09/28/2021 11:55 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 09/28/2021 11. Mr. Jackson’s email inquired as to whether the Building was completed and whether the Building had obtained a temporary certificate of occupancy (“TCO”), and it provided, in relevant part, as follows:4 Happy New Year Isaac, I hope you and your family have been doing well. I am reaching out to you to follow up on the construction completion status of Nostrand Ave. How is the status of the TCO coming along? If you have already received it, can you please submit a copy of the TCO to me for our own records and contract registration? Also, I would like to visit Nostrand to conduct a quick walkthrough of the building just to get eyes on the site and take pictures to help coordinate the initial OTDA/FDNY walkthrough. Does Tuesday, 1/26 at 10 am work for you? (A copy of the January 6, 2021 email chain from Mr. Jackson is annexed hereto as Exhibit “B”). 12. In response to the January 6, 2021 email from Mr. Jackson, I sent him an email, also on January 6, 2021, confirming to him that the Building was completed, that I was attempting to obtain the TCO for the Building, and I sent him some pictures of the completed Building. 13. My January 6, 2021 email to Mr. Jackson stated, in relevant part, the following: Regarding the Nostrand Project. The project is Completed. The final sidewalks being completed now. We have some of the inspections lined up this month, the faster we get the DOB appointments the faster we can obtain TCO. I’m pushing to get TCO still this month. I’m attaching some pics as well, I’m on site everyday Let me know when you would like to pass by & I'll arrange it. . . . (See Exhibit “A” annexed hereto). 14. In response, Mr. Jackson sent me an email on January 7, 2021 which stated the following: Good Morning Eli, Thank you for the pictures and the updates. If there are any barriers in obtaining the TCO, please let me know as we may be able to assist with this. As far as the 4 Families With Children Capacity is the description which DHS uses for homeless shelters for families with minor children. 4 4 of 17 FILED: ROCKLAND COUNTY CLERK 09/28/2021 11:55 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 09/28/2021 site visit, lets schedule this for Tuesday, 1/26 at 10 am. I will circulate a calendar invite shortly. (See Exhibit “B” annexed hereto). 15. On February 9, 2021, as part of the process of the Building being operated as a homeless shelter for families with minor children, Mr. Jackson sent Mr. Isaac Lefkowitz and I an email which stated the following: Hi Eli and Isaac, Can you please submit the building plans for 21 E. 29th Street (Nostrand Ave)? Similarly to all newly contracted families with children sites, we have an internal unit that can draft a rightsizing report based on the building plans during COVID. As we are nearing the TCO inspection and construction completion, I would like for this unit to do the same for this site as well before operation. (Emphasis added). (A copy of the February 9, 2021 email chain from Mr. Jackson is annexed hereto as Exhibit “C”). 16. Subsequently, I discovered that the not-for-profit organization that DHS was working with to operate the Building, as a homeless shelter for families with minor children, was Westchester Community Opportunity Program, Inc. (“WestCop”), and after I was informed by DHS of this, I was required to confirm in writing to DHS that WestCop would be the only not- for-profit organization that would be working with Hello Nostrand to operate the Building as a shelter. 17. Accordingly, on February 2, 2021, I wrote the following letter to Ms. Courtney Nelson, Executive Director of Families with Children Capacity in which I stated, in relevant part, the following: Dear Courtney, This letter is written in response to your request for the owner of 1580 Nostrand Avenue aka 21 East 29th Street Brooklyn, NY to confirm that Westcop, Inc. is the 5 5 of 17 FILED: ROCKLAND COUNTY CLERK 09/28/2021 11:55 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 09/28/2021 only organization with site control to enter into an agreement with NYC Department of Homeless Services to provide Shelter & Overnight Facility Housing for Homeless Families with Children. Westcop, Inc and Hello Nostrand LLC, are working together to prepare the building for occupancy to house the homeless and look forward to a long relationship with DHS. . . . (A copy of my February 2, 2021 letter to Ms. Nelson is annexed hereto as Exhibit “D”). B. The Selection By DHS of The Building As A Homeless Shelter For Families With Minor Children 18. Subsequently, on March 4, 2021, Ms. Nelson, on behalf of DHS, approved the Building for a homeless shelter for families with minor children with WestCop, as the not-for- profit organization. 19. Ms. Nelson’s letter approving the Building as a homeless shelter for families with minor children provided, in relevant part, as follows: The New York City Department of Homeless Services (DHS) has received and selected the proposal from Westchester Community Opportunity Program, Inc. (WestCOP) to operate a 93 unit shelter for families with children at 21 East 29th Street, Brooklyn, NY, 11226. . . . (Emphasis added). Currently, we are negotiating the operations budget. Please note that the budget will be effective once fully negotiated and approved, and the subsequent registration of the five-year contract by the New York City Office of the Comptroller. (A copy of Ms. Nelson’s March 4, 2021 letter is annexed hereto as Exhibit “E”).5 20. Importantly, before the Building could start operating as a homeless shelter it had to pass an inspection by the New York State, Office of Temporary And Disability Assistance (“OTDA”), Department of Shelter Oversight And Compliance. 21. On April 16, 2021, OTDA conducted an inspection of the Building at which I was present, and the Building past that inspection subject to some final corrective work which had to 5 Certain confidential information has been redacted from this Exhibit, and the unredacted version of this Exhibit is available for review by the Court in camera. 6 6 of 17 FILED: ROCKLAND COUNTY CLERK 09/28/2021 11:55 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 09/28/2021 be completed. (A copy of the Findings Statement For Proposed Facilities of April 16, 2021 which was prepared by OTDA after its inspection of the Building is annexed hereto as Exhibit “F”). 22. Following the approval by OTDA of the Building for use as a homeless shelter for families with minor children, I continued working diligently to get the Building ready for operation as a homeless shelter. C. DHS Designated The Building Hello Nostrand Opportunity As The Name For The Homeless Shelter 23. Even after defendants 1580 Nostrand Mezz, LLC and Madison Realty Capital, L.P. served the UCC notice of sale on July 14, 2021, I continued to work diligently to get the Building ready for its opening as a homeless shelter for families with minor children. 24. The Building will be part of DHS’s opportunity program designed to get each of the 93 families with children back on their feet.6 25. The opportunity program, which will be an integral part of the homeless shelter, will feature caseworkers to assist each of the families to find employment and permanent housing. 26. The idea behind the opportunity program is to provide the families with minor children with a different kind of homeless shelter experience which will help them rehabilitate themselves and move on to live productive lives. 27. Thus, DHS has decided to name the shelter that will be operated at the Building Hello Nostrand Opportunity. 6 There are 93 separate apartments in the building. However, since the shelter is not designed as permanent housing for homeless families, the families residing in the building will be constantly changing as each family finds permanent housing. 7 7 of 17 FILED: ROCKLAND COUNTY CLERK 09/28/2021 11:55 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 09/28/2021 D. The Day Care Center And the Other Amenities The Building Will Have As A Homeless Shelter 28. The reason that DHS decided to name the homeless shelter that will be operated at the Building Hello Nostrand Opportunity is because the Building is at the core of the opportunity program that will be a feature of the shelter. 29. In the minds of many people, when they think of homeless shelters, they think of warehouses for the homeless, which are filthy and infested with all kinds of rodents. 30. The Building is a high-quality construction consisting of 93 separate apartments for each of the homeless families with minor children that will be living there. 31. Each apartment features a large terrace in front and back, with some of the apartments being 2, 3 and 4 bedrooms. (See Exhibit “A” annexed hereto). 32. Also, I am working with a DHS designated not-for-profit organization to turn the first floor of the Building, consisting of 7,000 square feet, into a daycare center for the preschool-age children who will be living in the shelter. 33. The daycare center will be a safe and communal place where the preschoolers can be left while their parents are away from the shelter, either looking for employment or working so that the families can eventually move out of the shelter. 34. Critically, the daycare center will be open to all preschoolers in the neighborhood, with priority given to preschoolers living in the shelter. 35. DHS has insisted that the daycare center be open to all preschoolers in the neighborhood so that the preschoolers living in the shelter can feel integrated with the other preschoolers from the neighborhood so as to foster a sense of community between the residents of the neighborhood and the residents of the shelter. 8 8 of 17 FILED: ROCKLAND COUNTY CLERK 09/28/2021 11:55 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 09/28/2021 36. Importantly, working with an independent contractor, I have already wired every apartment in the Building with the internet so that each family in the shelter will have access to the internet, a utility which is so critical with the ongoing Covid-19 pandemic that has often necessitated remote learning for school children in New York City. 37. In wiring each apartment with the internet, I was determined to avoid digital inequity which has become more pronounced during the Covid-19 pandemic as individuals in poor neighborhoods lack the same access to the internet, with all of the corresponding benefits, as individuals living in wealthy neighborhoods.7 E. DHS Has Made The Final Designation Of The Not-For-Profit Organization To Operate The Building As A Homeless Shelter 38. The Building is scheduled to open as a homeless shelter for families with minor children by the end of October 2021. It was anticipated that the opening would have taken placed in mid-September, 2021, but, in late August 2021, WestCop unexpectedly had to withdraw from the operation of the shelter. 39. In response, DHS designated the Children’s Rescue Fund (“CRF”) as the not-for- profit organization that would be operating the homeless shelter at the Building, and on August 31, 2021, Ms. Nelson sent me a letter to that effect. Ms. Nelson’s letter provided, in relevant part, as follows: I want to introduce you to Tahisha Salmon Lue-Hing, who is the vice president of operations at the Children’s Rescue Fund (CRF). I have given her the preliminary details and some background on the Nostrand Avenue project, but wanted to facilitate a call with you all for this week based on my below availability to discuss the option of them operating this site for families’ shelter. Following that initial call, you all should feel free to continue the discussion now that you’re connected. 7 See California Management Review, Coronavirus and the widening educational digital divide: The perfect Storm for inequalities? ( July 31, 2020) https://cmr.berkeley.edu/2020/07/covid-education. 9 9 of 17 FILED: ROCKLAND COUNTY CLERK 09/28/2021 11:55 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 09/28/2021 Please let me know which date/time works best and I will provide the call in details. Wednesday @ 9am, 10am, noon, or 2pm Thursday @ 9am, 11am, 1pm Friday @ 1pm Hope to hear from you all soon. Thanks. (A copy of Ms. Nelson’s August 31, 2021 letter is annexed hereto as Exhibit “G”). 40. After several telephone discussions with Ms. Nelson and representatives from the Children’s Rescue Fund, on September 10, 2021, I sent a letter to DHS confirming that Hello Nostrand will be working only with the Children’s Rescue Fund to operate the homeless shelter for families with minor children at the Building. 41. My letter to Ms. Nelson provided, in relevant part, as follows: This letter is written in response to your request for the ownership Hello Nostrand LLC located at 21 East 29th Street Brooklyn, NY, to confirm that the Children’s Rescue Fund is the only organization with site control to enter into an agreement with NYC Department of Homeless Services to provide Shelter & Overnight Facility Housing for Homeless Families with Children. Hello Nostrand LLC, and Children’s Rescue Fund, will be working together to prepare the 93 unit building for occupancy to house the homeless Families with Children and look forward to a long working relationship with DHS. . . . (A copy of my September 10, 2021 letter to Ms. Nelson is annexed hereto as Exhibit “H”). F. The City Has Already Approved The Start-up Budget To Get The Building Shelter-ready For Its Opening As A Homeless Shelter By The End of October 2021 42. On September 17, 2021, after the Children’s Rescue Fund was designated as DHS’s not-for-profit organization for the shelter, Ms. Nelson sent me, and my assistant, an email requesting a telephone conference call for September 23, 2021 with representatives of the Children’s Rescue Fund to finalize the details to get the Building shelter-ready for an opening at the end of October 2021. 10 10 of 17 FILED: ROCKLAND COUNTY CLERK 09/28/2021 11:55 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 09/28/2021 43. The email from Ms. Nelson provided as follows: Hi Eli/Florian, Are you all free to do a call on Thursday at 10am with CRF as well? Thanks, (A copy of Ms. Nelson’s September 17, 2021 email is annexed hereto as Exhibit “I”). 44. During the telephone call on Thursday, September 23, 2021, with Ms. Nelson and representatives of the Children’s Rescue Fund, she confirmed that the City had already approved the start-up budget to make the Building shelter-ready, and she gave me a list of items required by DHS specifically for the Building since the shelter will be occupied by minor children. 45. The list of safety items includes, among other things, having all of the windows frosted; all appliances have to be anchored in place; stronger shower curtains; additional safety rails on the terraces; and fire hydrants in each apartment. 46. In addition, Ms. Nelson indicated that DHS would require additional security cameras to be placed throughout the Building and its parameters and that the offices for the caseworkers would have to be relocated from the basement to another floor in the Building.8 47. Once all these items are addressed, Ms. Nelson indicated there would be a final inspection of the Building by OTDA, and assuming that it passes that inspection, the Building will be ready to open at the end of October 2021 as a homeless shelter for families with minor children. 8 I am not sure that there will be space on the first floor of the Building, with the day care center, for the offices for the case workers. 11 11 of 17 FILED: ROCKLAND COUNTY CLERK 09/28/2021 11:55 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 09/28/2021 G. The Construction of Another Homeless Shelter On The Adjoining Vacant Land 48. Even before the opening of the Building as a homeless shelter for families with minor children, I am already in discussions with DHS to construct another shelter on the Adjoining Vacant Land. 49. Based upon the preliminary plans and projections, the second homeless shelter to be constructed on the Adjoining Vacant Land would consist of 114 units, it would be integrated with the homeless shelter that will be operated in the Building and it will have the same unique open concept designs and similar amenities. 50. Also, the preschoolers who will be living in the new shelter will be eligible for enrollment in the daycare center in the Building. 51. In addition, the homeless shelter that will be constructed on the Adjoining Vacant Land will also have caseworkers to provide counseling to the families on finding employment and permanent housing so that they can get back on their feet. III. The Covid-19 Pandemic Has Made The Need For Additional Homeless Shelters In New York City Urgent 52. The ongoing homeless crisis in New York City has been made worst by the Covid-19 pandemic, and, therefore, the need for additional homeless shelters is urgent. 53. Significantly, there have been several lawsuits against the City of New York and DHS concerning homeless shelters and the need to contain the spread of Covid-19 among the city’s homeless population. 54. For example, in Morleen Fisher, et. al. v. The City of New York, et. al., Supreme Court, New York County, Index No. 452069/2020 (hereafter the “Morleen Fisher Action”), the homeless petitioners commenced a hybrid Article 78 proceeding to compel the City and DHS to 12 12 of 17 FILED: ROCKLAND COUNTY CLERK 09/28/2021 11:55 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 09/28/2021 house the city’s homeless population in single occupancy hotel rooms which became vacant due to low occupancy rates for hotels caused by the Covid-19 pandemic. 55. In their complaint, the petitioners in the Morleen Fisher Action alleged, among other things the following: Petitioners bring this case to remedy the failures of Respondents City of New York, the New York City Department of Social Services (“DSS”), and its subdivision, the New York City Department of Homeless Services (“DHS”), to take appropriate action to temporarily provide shelter placements to single adults that are free of significant health risks during the course of the COVID-19 pandemic. . . . Because most individuals staying in DHS shelters are forced to live, eat, and sleep in close quarters with so many others during the pandemic, the age-adjusted COVID-19 mortality rate for sheltered single adults through August 2020 is 409 deaths per 100,000 people, which is 80 percent higher than the general population of New York City. . . . Individual Petitioners and other single adult homeless New Yorkers cannot safely socially distance while living in congregate shelters where they are required to share sleeping areas, bathrooms, dining space and other living facilities with unrelated adults. . . . Despite an abundance of vacant hotel rooms—to the point where some hotels are in danger of permanently closing—and federal funding expressly available for this exact purpose, the Respondents have taken only half-measures to protect the individual Petitioners and other single adult homeless individuals in a timely, measured, and effective manner. . . . In an attempt to remedy their prior failure to de-densify their shelters, Respondents directed their non-profit agent shelter providers to quickly choose who among their residents would get hotel rooms and who would remain in a congregate shelter setting. . . . Prior to SARS-CoV-2’s arrival in the United States, New York City was already grappling with record-breaking levels of homelessness. Due to the ongoing shortage of affordable and accessible housing for extremely low-income individuals in New York City, the number of single homeless adults in shelters continued to break records during the early months of 2020, before SARS-CoV-2 began to ravage the City. The connection between stable housing and good health is well-established, and research continues to show that homeless single adults exhibit poorer health 13 13 of 17 FILED: ROCKLAND COUNTY CLERK 09/28/2021 11:55 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 09/28/2021 outcomes and higher mortality rates than the rest of the population, separate from the outcomes from the pandemic. . . . Unsurprisingly, Black and Hispanic/Latinx New Yorkers are disproportionately affected by homelessness. Eighty-six percent of homeless single adults identify as Black or Hispanic, which is significantly higher than the 53 percent of New York City’s population who identify as such. Black and Hispanic/Latinx New Yorkers, whether housed or unhoused, are significantly more at risk of dying of coronavirus than white New Yorkers. . . . Congregate shelter settings, the prevalence of health risk factors among residents, and the disproportionate number of Black and Hispanic/Latinx New Yorkers who experience homelessness have led to a mortality rate that is significantly higher than the general population of New York City. . . . The type of shelter setting and prevalence of risk factors among homeless people affect their exposure to SARS-CoV-2 and vulnerability to COVID-19. . . . (See a copy of the complaint in the Morleen Fisher Action which is annexed as Exhibit “A” to the accompanying affirmation of Victor A. Worms dated September 27, 2021)(hereafter “Worms Aff”), ¶¶ 1, 3, 6, 8, 10, 75, 80, 82, 83 & 85). 56. Initially, the City of New York moved homeless individuals from congregate homeless shelters to two-occupancy hotel rooms, but the petitioners in the Morleen Fisher Action were seeking to have the City place homeless individuals in single-occupancy hotel rooms, and the petitioners further alleged in their complaint, among other things, the following: Petitioner Coalition for the Homeless and the Speaker of the New York City Council, along with other advocacy and community organizations, urged the Mayor and DHS to move all homeless individuals out of congregate shelters and offer single-occupancy hotel rooms to them and to unsheltered New Yorkers in order to reduce their risk of contracting SARS-CoV-2. . . . As of July 2020, Respondents had moved approximately 8,700 single adults to de- densification hotels and left approximately 5,500 single adults in congregate shelter settings. . . . Thousands of homeless New Yorkers remain in congregate shelters or double- occupancy hotel rooms, putting them at greater risk of contracting or spreading SARS-CoV-2. Individuals in double-occupancy rooms must share bathrooms, eat in the same enclosed space, and sleep without masks on with adults unrelated to them, among other activities that could lead to exposure. . . . 14 14 of 17 FILED: ROCKLAND COUNTY CLERK 09/28/2021 11:55 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 09/28/2021 Last month, after residents of Manhattan’s Upper West Side objected to the presence of de-densification hotels for single adults in their neighborhood, Mayor de Blasio announced a plan to move the residents of one of these sites, the Lucerne Hotel, to another Manhattan shelter serving families, many of whom included someone living with a disability. The Mayor’s plan would have displaced these families around the City to make room for the men from the Lucerne.9 (See Exhibit “A” to the Worms Aff., ¶¶ 103,111, 112 & 124). IV. The Plaintiffs Will Suffer Irreparable Harm If Injunctive Relief Is Not Granted Because Their Business of Providing Homeless Shelters To DHS Will Be Permanently Destroyed 57. The business of the plaintiffs is the construction, and leasing to DHS, through its designated not-for-profit organizations, of homeless shelters for families with minor children. 58. The plaintiffs have completed one shelter for which the City of New York has already approved the start-up budget, and which is scheduled to open by the end of October 2021. 59. The plaintiffs are working diligently to complete all of the requests by DHS, which were communicated to them by Ms. Nelson, during the telephone conference call on Thursday, September 23, 2021, so that the final inspection of the Building by OTDA can be completed. 60. After that inspection, the Building will open as a shelter, and 93 families with minor children will be able to move in and start the process of getting back on their feet. 61. The business of providing homeless shelter to DHS is not a simple business. In many ways, this is a business of relationship and trust. The responsible officers at DHS must be 9 On July 13, 2021, a federal judge blocked New York City’s plans to move 8,000 homeless individuals out of “hotels into barracks-style shelters.”See, The New York Times, N.Y.C.’s Plan To Move Homeless People From Hotels is Blocked by a Judge (July 26, 2021) https://www.nytimes.com/2021/07/13/nyregion/homeless-hotels- protests.html. On July 26, 2021, the City resumed moving 8,000 homeless individuals from hotels to homeless shelters. See, The New York Times, New York Moves Homeless People From Hotels to Shelters as Virus Cases Rise (July 26, 2021) https://www.nytimes.com/2021/07/26/nyregion/homeless-hotel-shelter-ny.html. 15 15 of 17 FILED: ROCKLAND COUNTY CLERK 09/28/2021 11:55 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 09/28/2021 able to trust and have confidence in the provider of the shelter and be comfortable that the provider will be providing a safe and high-quality building that will be suitable for the needs of families with minor children. 62. That relationship of trust and confidence between DHS and the provider takes time to develop and cultivate. It does not happen overnight. The plaintiffs, and I, have developed that relationship with DHS. 63. The construction of homeless shelters for DHS is complex because one has to be familiar with not only the regulations by the New York City Department of Buildings, but also with DHS’s regulations, and the regulations of the State of New York applicable to homeless shelters. 64. In addition, as part of providing the Building to DHS for use as a homeless shelter, the plaintiffs have a continuing obligation to maintain and keep the Building in good structural repair, among other things. 65. Without injunctive relief, the business of the plaintiffs of providing homeless shelters to DHS for families with minor children will be permanently destroyed, and the plaintiffs will suffer irreparable harm. 66. I am advised by counsel that on a motion for injunctive relief, New York courts, in assessing the balance of the equities, can consider the public interest in granting injunctive relief. 67. To be sure, this is one of those cases in which irreparable harm and the public interest merges. 68. This is because if injunctive relief is not granted, and there is a sale of the Collateral not only will the plaintiffs’ business be permanently destroyed, but 93 homeless families with 16 16 of 17 FILED: ROCKLAND COUNTY CLERK 09/28/2021 11:55 PM INDEX NO. 034885/2021 NYSCEF