Preview
FILED: ROCKLAND COUNTY CLERK 09/29/2021 02:30 PM INDEX NO. 034885/2021
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/29/2021
EXHIBIT “A”
FILED: ROCKLAND COUNTY CLERK 09/29/2021 02:30 PM INDEX NO. 452069/2020
034885/2021
NYSCEF DOC. NO. 1
46 RECEIVED NYSCEF: 10/28/2020
09/29/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
MORLEEN FISHER, TAMARA WILLIAMS, BJ
ATHILL, RODAISHA SMITH, GARY CORBIN,
COALITION FOR THE HOMELESS, on behalf of
themselves and all others similarly situated , Index No. 452069/2020
Petitioners,
v. VERIFIED PETITION
THE CITY OF NEW YORK; THE NEW YORK CITY
DEPARTMENT OF SOCIAL SERVICES; STEVEN
BANKS, as Commissioner of the New York City
Department of Social Services; THE NEW YORK
CITY DEPARTMENT OF HOMELESS SERVICES;
JOSLYN CARTER, as Administrator of the New York
City Department of Homeless Services,
Respondents.
Petitioners Morleen Fisher, Tamara Williams, BJ Athill, Rodaisha Smith, Gary Corbin,
and Coalition for the Homeless, on behalf of themselves and all others similarly situated, by and
through their attorneys The Legal Aid Society and Jenner & Block LLP, allege as follows:
INTRODUCTION
1. Petitioners, single adult New Yorkers who are homeless, face disproportionate
health risks due to their placement in congregate settings in New York City adult shelter
facilities during this once-in-a-century global pandemic. 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.
1 of 56
FILED: ROCKLAND COUNTY CLERK 09/29/2021 02:30 PM INDEX NO. 452069/2020
034885/2021
NYSCEF DOC. NO. 1
46 RECEIVED NYSCEF: 10/28/2020
09/29/2021
2. The COVID-19 pandemic has wrought devastation on the lives and livelihoods of
people across the globe, felt particularly acutely in New York. At the time of this filing, the
highly contagious, airborne SARS-CoV-2 virus that causes COVID-19 is responsible for more
than 19,000 deaths, and suspected of being responsible for an additional 4,600 deaths, in New
York City alone. Most public health experts anticipate that the coming months will bring a
resurgence, which is already evident in certain communities throughout the City. New cases
continue to be diagnosed among shelter residents.
3. People experiencing homelessness are among New York City’s most vulnerable
and marginalized populations, and they have been hit particularly hard amidst this crisis. At the
beginning of the pandemic, in March 2020, there were over 19,000 single adults in New York
City shelters run by Respondent DHS, including over 14,000 in congregate dorms, at least 3,500
in commercial hotel placements, and more than 1,400 in safe havens and stabilization beds,
which are provided in both congregate and non congregate settings.1 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. The mortality rates only partially capture the destructive
toll of the pandemic; many more who survive the disease face potentially long-lasting
detrimental health effects as a result.
1
Safe havens differ from traditional shelters in that they are often smaller, employ a higher ratio of social services
staff and fewer law enforcement staff, exercise flexibility in their rules and better tailor service plans to meet
individual needs. See Coalition for the Homeless, State of the Homeless 2020 at p. 14 (Mar. 10, 2020),
https://www.coalitionforthehomeless.org/wp-content/uploads/2020/03/StateofTheHomeless2020.pdf. Stabilization
beds are low-threshold private rented rooms (often with shared bathrooms) for clients who have been chronically
unsheltered. The City of New York, Dept. of Social Services, The Journey Home: An Action Plan
to End Long-Term Street Homelessness at p. 8 (Sep. 17, 2020), https://www1.nyc.gov/assets/dhs/downloads/pdf/the-
journey-home-2019-print-web.pdf.
2
2 of 56
FILED: ROCKLAND COUNTY CLERK 09/29/2021 02:30 PM INDEX NO. 452069/2020
034885/2021
NYSCEF DOC. NO. 1
46 RECEIVED NYSCEF: 10/28/2020
09/29/2021
4. Although medical knowledge about the way the virus spreads and solutions to
slow it have been evolving over the last several months, certain effective prevention measures
have been clear from the beginning of the pandemic. Almost universally, scientists, medical
professionals, public officials and individuals across the country, including in New York City,
have recognized that, due to the virus’ ability to propagate through respiratory droplet and
airborne transmission, social distancing—keeping apart from others who may have been
exposed—is an essential component of minimizing risk during the COVID-19 pandemic.
5. The federal Centers for Disease Control and Prevention (“CDC”) has confirmed
that the virus spreads through airborne transmission: via tiny particles released from an infected
person breathing or speaking. These particles can hang in the air in enclosed spaces for hours
even after an infected person has left the space. In environments with inadequate air circulation,
aerosol spread can cause infections among people who are more than six feet apart, even with
rigorous protocols such as temperature checks, sterilization of surfaces and hand washing in
place.
6. 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. Petitioners
include the following individuals:
Petitioner Morleen Fisher is currently placed at a congregate shelter in
Manhattan, where she shares a sleeping area with approximately ten
unrelated individuals and a bathroom with around twenty unrelated
individuals. Ms. Fisher is a smoker and has diabetes, both categorized as
high-risk factors for severe illness by the CDC if she were to contract
SARS-CoV-2. She has also been diagnosed with bipolar disorder and
post-traumatic stress disorder (“PTSD”). When she requested a single
room and private bathroom due to her inability to socially distance in her
current placement, she was told that “DHS does not put crazy people in
hotels.” In addition to her own medical vulnerabilities, Ms. Fisher is
3
3 of 56
FILED: ROCKLAND COUNTY CLERK 09/29/2021 02:30 PM INDEX NO. 452069/2020
034885/2021
NYSCEF DOC. NO. 1
46 RECEIVED NYSCEF: 10/28/2020
09/29/2021
currently employed as an in-home aide to an elderly couple in the Upper
East Side and fears spreading the virus to her clients.
Petitioner Tamara Williams is currently placed in a congregate shelter in
Manhattan, where she shares a sleeping area with about eleven unrelated
individuals and a bathroom with approximately twenty unrelated
individuals. Ms. Williams has a history of heart failure and has been
diagnosed with Type II diabetes and chronic obstructive pulmonary
disease (“COPD”), both of which are categorized as high-risk factors for
severe illness for COVID-19 by the CDC if she were to contract SARS-
CoV-2. She is employed part-time as a counselor for a non-profit
behavioral health center. She currently works remotely.
Petitioner BJ Athill is currently placed in a double-occupancy hotel room in
downtown Manhattan, where he shares a sleeping area and bathroom with one
other person. He has been diagnosed with chronic bronchial asthma (requiring
him to use an electric nebulizer), which the CDC categorizes as a condition that
might put him at an increased risk of severe illness from COVID-19 if he were to
contract SARS-CoV-2. He is employed at a large grocery store in Manhattan, and
he must take public transportation to get to and from work. He is also in a
training program to become a driver for the Access-A-Ride Paratransit Service,
which provides transportation for individuals who cannot otherwise use the City’s
subway and bus system.
Petitioner Rodaisha Smith is currently placed in a double-occupancy hotel room
in midtown Manhattan, where she shares a sleeping area and a bathroom with one
other person. She does not know how her roommate spends her days outside of
the hotel. Ms. Smith works at a national nonprofit organization as a Residential
Direct Support Professional. Her current clients include two men living in
Manhattan who would face severe health complications if they were to contract
SARS-CoV-2. Ms. Smith uses the subway to get to work.
Petitioner Gary Corbin is homeless and living unsheltered on the streets.2 He has
been diagnosed with heart disease as a result of his cancer treatment, which is
categorized as a high-risk factor for severe illness for COVID-19 by the CDC if
he were to contract SARS-CoV-2. He was previously placed in a double-
occupancy hotel room, but his roommate’s activities put him at high risk of
becoming sick with COVID-19. When shelter staff refused his request for a
single room, he left shelter because of his fear of getting sick. He spends
approximately half the month in hotels using money from his Social Security
Disability payments, but, once the money runs out each month, he sleeps on the
streets.
2
On October 22, 2020, the day of the filing of this Verified Petition, Mr. Corbin was informed that he would be
placed in a single-occupancy hotel room. However, he had not received his room placement by the time this petition
was filed.
4
4 of 56
FILED: ROCKLAND COUNTY CLERK 09/29/2021 02:30 PM INDEX NO. 452069/2020
034885/2021
NYSCEF DOC. NO. 1
46 RECEIVED NYSCEF: 10/28/2020
09/29/2021
7. Recognizing the clear and pressing public health emergency posed by COVID-19,
the Federal Emergency Management Agency (“FEMA”) authorized disaster relief funding for
local governments to place individuals who are homeless into hotel rooms—left largely vacant
during the pandemic—so that these individuals may safely socially distance and protect
themselves and the communities in which they live from further spread of the virus.
8. 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. Failing to
acknowledge the risk of aerosol transmission in congregate spaces, Respondents initially resisted
moving the vast majority of single homeless adults to hotel rooms, inexplicably citing cost as a
reason for keeping people in congregate shelters, despite the availability of federal
reimbursement for at least 75 percent of the hotel rates.
9. When Respondents finally began to move individuals from congregate shelters
into vacant hotel rooms, they presumed that mask use and six feet of distance between
individuals was enough to fully protect residents and staff and therefore it would be safe to allow
thousands of people to remain in congregate shelters. Relying on this outdated public health
guidance, they placed many of those who moved to hotels in double-occupancy rooms, which
they shared with another unrelated individual, still failing to provide appropriate shelter
placements that would allow them to safely socially distance. Respondents also relied on an ill-
defined and paternalistic claim that they were applying the principles of “harm reduction”—an
approach to management of drug use that seeks to minimize negative outcomes—to justify
relegating some single adults to continued congregate placement on the basis of exaggerated
5
5 of 56
FILED: ROCKLAND COUNTY CLERK 09/29/2021 02:30 PM INDEX NO. 452069/2020
034885/2021
NYSCEF DOC. NO. 1
46 RECEIVED NYSCEF: 10/28/2020
09/29/2021
fears of the risk of self-harm. As a result, people living in congregate shelters and double-
occupancy hotel rooms continue to test positive for the virus and carry it, in their daily activities,
throughout the City.
10. 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. Without
any guidance from Respondents, the shelter providers were left to make ad-hoc and standardless
assessments of need, with the result that these crucial determinations were made in an arbitrary
and capricious manner without the appropriate and required assessments of their clients’
individual needs.
11. Furthermore, many people living unsheltered on the streets of New York City
remain there, at risk of injury or death from exposure, because they fear the health consequences
of coming into shelters and being placed in a setting in which they cannot properly socially
distance.
12. Under Article XVII, Section 1 of the New York Constitution, Respondents are
required to provide “aid, care and support of the needy.” New York courts have long interpreted
this mandate to include the provision of shelter placements to individuals who are homeless that
are free of serious risks to their health. In light of this fundamental right, Respondents’ failure to
provide safe shelter placements where the individual Petitioners and other single adult homeless
New Yorkers can adequately socially distance when the means to do so are readily available is
an unjustified, arbitrary, and capricious refusal to carry out a clearly established solution to a
life-threatening pandemic.
6
6 of 56
FILED: ROCKLAND COUNTY CLERK 09/29/2021 02:30 PM INDEX NO. 452069/2020
034885/2021
NYSCEF DOC. NO. 1
46 RECEIVED NYSCEF: 10/28/2020
09/29/2021
13. The individual Petitioners are homeless single adults living in New York City
who have been denied the option to move to a single-occupancy hotel room; they either are still
living in congregate shelters, are sharing a double-occupancy hotel room with an unrelated
individual, or have refused to enter shelters because of the risks associated with being housed
with unrelated individuals. Several of the Petitioners have conditions that put them at high risk
of death if they were to contract SARS-CoV-2. Petitioner Coalition for the Homeless brings this
action pursuant to its role as the Court-appointed monitor of DHS’s single adult shelter system
and its mission, well-recognized by New York courts, of advocating for homeless New Yorkers
who are similarly at risk, many of whom have severe barriers to self-advocacy.
14. Pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq (the
“ADA”), and Section 504 of the New York Rehabilitation Act of 1973 (the “Rehabilitation
Act”), Respondents must provide reasonable accommodations to individuals with disabilities.
By failing to provide single-occupancy hotel rooms to homeless individuals with medical
conditions that put them at high risk of death if they were to contract SARS-CoV-2, Respondents
have acted in violation of the ADA and the Rehabilitation Act.
15. Respondents have also violated the constitutional rights of the Petitioners, by
failing to provide individualized determinations as to their right to a single-occupancy hotel
room. Instead, Respondents are operating in an arbitrary manner, leaving Petitioners and all
homeless New Yorkers, including individuals at higher risk of death if they were to contract
SARS-CoV-2, without notice of their right to safe shelter placements and a process by which to
obtain them.
7
7 of 56
FILED: ROCKLAND COUNTY CLERK 09/29/2021 02:30 PM INDEX NO. 452069/2020
034885/2021
NYSCEF DOC. NO. 1
46 RECEIVED NYSCEF: 10/28/2020
09/29/2021
16. Respondents have also violated Petitioners’ rights by segregating Petitioners with
certain disabilities in congregate facilities, which pose a dangerously increased risk of
contracting SARS-CoV-2.
17. In this action, Petitioners seek this Court’s intervention to provide potentially life-
saving relief and a clear remedy that is available to Respondents: the offer of a single-occupancy
hotel room for each individual Petitioner and every single adult homeless New Yorker until
public health authorities determine it is safe to return to congregate settings.
PARTIES
Morleen Fisher
18. Petitioner Morleen Fisher is currently homeless and resides in a congregate
shelter in downtown Manhattan. (Fisher Aff. ¶ 1.)
19. Ms. Fisher is 55 years old, and she has been diagnosed with diabetes, PTSD, and
bipolar disorder. She also experiences lung-related discomfort and shortness of breath as she is
an active smoker. Her age and health conditions put her at an increased risk for severe illness
from COVID-19 according to the CDC if she were to contract SARS-CoV-2. (Id. ¶ 3.)
20. At her shelter, Ms. Fisher shares a sleeping area with approximately ten unrelated
individuals and a bathroom with approximately twenty unrelated individuals. (Id. ¶ 4.)
21. Ms. Fisher is currently employed part-time as an in-home aide to an elderly
couple on the Upper East Side. Ms. Fisher uses public transportation to commute between her
shelter placement and her place of employment. She is extremely concerned about the risk of
contracting SARS-CoV-2 and inadvertently transmitting it to the couple for whom she works,
given that they are also at high risk for severe COVID-19 complications. When Ms. Fisher
requested access to a private room and bathroom (such as a hotel room placement) to properly
8
8 of 56
FILED: ROCKLAND COUNTY CLERK 09/29/2021 02:30 PM INDEX NO. 452069/2020
034885/2021
NYSCEF DOC. NO. 1
46 RECEIVED NYSCEF: 10/28/2020
09/29/2021
social distance, shelter staff denied her request stating, “DHS does not put crazy people in
hotels.” (Id. ¶¶ 6–9.)
Tamara Williams
22. Petitioner Tamara Williams is currently homeless and resides in a congregate
shelter in downtown Manhattan. (Williams Aff. ¶ 1.)
23. She is 64 years old, and she has a history of heart failure and is diagnosed with
Type II diabetes, COPD, and schizoaffective disorder. Ms. Williams has to frequently use a
nebulizer to stabilize her breathing. Her age and health conditions put her at an increased risk for
severe illness from COVID-19 according to the CDC if she were to contract SARS-CoV-2. (Id.
¶¶ 1, 3.)
24. Ms. Williams currently shares a sleeping area with about eleven unrelated
individuals and a bathroom with approximately twenty unrelated individuals. (Id. ¶ 4.)
25. Despite her fears of contracting the virus, staff at her shelter never notified her
that she could request a reasonable accommodation to be transferred to a single room. (Id. ¶ 7.)
26. She is employed part-time as a counselor for a non-profit behavioral health center
and currently works remotely. (Id. ¶ 6.)
BJ Athill
27. Petitioner BJ Athill is currently homeless and resides in a hotel in downtown
Manhattan. (Athill Aff. ¶ 1.)
28. He has been diagnosed with chronic bronchial asthma, which puts him at an
increased risk for severe illness from COVID-19 according to the CDC if he were to contract
SARS-CoV-2. He uses an electric nebulizer to manage his asthma. (Id. ¶ 3.)
29. He shares a bedroom and a bathroom with one unrelated individual. (Id. ¶ 4.)
9
9 of 56
FILED: ROCKLAND COUNTY CLERK 09/29/2021 02:30 PM INDEX NO. 452069/2020
034885/2021
NYSCEF DOC. NO. 1
46 RECEIVED NYSCEF: 10/28/2020
09/29/2021
30. Mr. Athill is currently employed at a large grocery store in downtown Manhattan.
He is also enrolled in a training program to become a driver for Access-A-Ride, the New York
City transportation service for people with disabilities who cannot ride public transportation. He
uses public transportation to travel between his shelter placement and his job. (Id. ¶ 6.)
31. Despite his fears of contracting the virus, staff at Mr. Athill’s shelter never
notified him that he could request a reasonable accommodation to be transferred to a single
room. (Id. ¶ 9.)
Rodaisha Smith
32. Petitioner Rodaisha Smith is currently homeless and resides in a hotel in midtown
Manhattan. (Smith Aff. ¶ 1.)
33. She shares a bedroom and a bathroom with one unrelated individual. She does
not know where her roommate spends her time outside of the hotel and is afraid that her
roommate will expose her to SARS-CoV-2. (Id. ¶ 3.)
34. Ms. Smith is currently employed as a Residential Direct Support Professional at a
national non-profit organization, where she works the overnight shift. Her current clients include
two men who would face severe health complications if they contracted the virus that causes
COVID-19. Ms. Smith is extremely concerned about the risk of contracting SARS-CoV-2 and
giving it to her clients. She uses public transportation to travel between her shelter placement
and her job. (Id. ¶¶ 4–7.)
Gary Corbin
35. Petitioner Gary Corbin is currently homeless and lives unsheltered on the streets.
(Corbin Aff. ¶ 1.)
10
10 of 56
FILED: ROCKLAND COUNTY CLERK 09/29/2021 02:30 PM INDEX NO. 452069/2020
034885/2021
NYSCEF DOC. NO. 1
46 RECEIVED NYSCEF: 10/28/2020
09/29/2021
36. Mr. Corbin has a full right leg prosthesis, a result of his cancer treatment. His
cancer treatment also caused him to have heart disease, which puts him at an increased risk of
severe illness from COVID-19 according to the CDC if he contracts SARS-CoV-2. He also has
liver damage as a result of hepatitis C, and he has been diagnosed with bi-polar II disorder,
which he controls with medication. (Id. ¶¶ 3–4.)
37. Mr. Corbin was previously placed in a double-occupancy hotel room by DHS, but
he did not feel safe remaining in the hotel room because his roommate’s actions exposed him to
a high level of risk of contracting SARS-CoV-2 and negatively impacted his mental health. Mr.
Corbin asked the shelter staff if he could have his own hotel room as a result of his risk factors,
but the staff denied his request. As a result, Mr. Corbin uses his Social Security Disability
income to stay in hotel rooms until he runs out of money and has to sleep on the streets. He can
usually only afford to stay in a hotel approximately half of the nights in a given month. (Id.
¶¶ 6–8.)
38. Mr. Corbin is too afraid to return to a shelter placement in a double-occupancy
room or congregate space because of the risk to his health if he becomes ill with COVID-19. (Id.
¶¶ 11–12.)
Coalition for the Homeless
39. Organizational Petitioner Coalition for the Homeless (hereinafter the “Coalition”)
is the nation’s oldest advocacy and direct service organization helping homeless men, women,
and children. The Coalition, founded in 1981, assists more than 3,500 New Yorkers each day
who are homeless or who are at risk of homelessness. The Coalition’s advocacy protects the
rights of homeless people because the Coalition serves as a plaintiff in litigation regarding the
right to emergency shelter, the right to vote, and housing and services for homeless people living
11
11 of 56
FILED: ROCKLAND COUNTY CLERK 09/29/2021 02:30 PM INDEX NO. 452069/2020
034885/2021
NYSCEF DOC. NO. 1
46 RECEIVED NYSCEF: 10/28/2020
09/29/2021
with mental illness and HIV/AIDS. The Coalition operates 11 frontline direct service programs,
offering vital services to homeless, at-risk, and low-income New Yorkers, including individual
advocacy and case management services to over 1,000 homeless and at-risk households each
month with referrals for shelter and emergency food programs and assistance with public
benefits. The Coalition seeks to bring this claim as an organization on behalf of the population
that is threatened by DHS’s actions and inactions. The Coalition plays a unique role advocating
on behalf of individuals who have severe barriers to self-advocacy in this context.
40. The Coalition brought landmark litigation on behalf of homeless men and women
in Callahan v. Carey and Eldredge v. Koch, and was a plaintiff in the consolidated cases
establishing a right to shelter and guaranteeing basic standards for shelters for homeless men and
women. See Callahan v. Carey, 12 N.Y.3d 496 (2009). Pursuant to the Callahan consent
decree, the Coalition serves as the court-appointed monitor of municipal shelters for homeless
adults. Id. The City has also appointed the Coalition to be the monitor for the family shelter
system. The Coalition was also a plaintiff in Butler v. City of New York, in which the City
agreed to comprehensive relief to protect individuals and families including people with
disabilities in the New York City shelter system. See Butler Stipulation of Settlement, 15 Civ.
03783 (S.D.N.Y) (November 7, 2017) (“Butler Stipulation”).
41. The Coalition has expended extensive time and resources in addressing the needs
of shelter residents and unsheltered homeless New Yorkers at risk of contracting COVID-19.
The Coalition is directly harmed by Respondents’ failure to adequately safeguard homeless New
Yorkers or provide them adequate due process as described above by having to devote its own
resources and staff time to correcting these failures on behalf of individual clients and groups of
clients.
12
12 of 56
FILED: ROCKLAND COUNTY CLERK 09/29/2021 02:30 PM INDEX NO. 452069/2020
034885/2021
NYSCEF DOC. NO. 1
46 RECEIVED NYSCEF: 10/28/2020
09/29/2021
42. Respondent City of New York is a municipal corporation chartered under the laws
of the State of New York. The City of New York receives federal funding and is subject to the
provisions of the Rehabilitation Act, as well as Title II of the ADA; the New York State Human
Rights Law (Executive Law § 296); and the New York City Human Rights Law (N.Y.C.
Administrative Code § 8-107(4)(a)).
43. Respondent Steven Banks, as the Commissioner of DSS, is the head of an
executive agency of the City of New York, which has responsibility for the operation and
administration of the shelter programs for New York City residents. The DSS principal place of
business and the Commissioner’s business address is 150 Greenwich Street, New York, NY
10007.
44. Respondent Joslyn Carter is the Administrator of DHS, which is the sub-agency
of DSS. The DHS principal place of business and the Administrator’s business address is 33
Beaver Street, New York, NY 10004.
JURISDICTION AND VENUE
45. CPLR § 7804 confers jurisdiction on this Court. See CPLR § 7804(b) (“A
proceeding under this article shall be brought in the supreme court . . . .”).
46. Venue lies properly in New York County pursuant to CPLR
§§ 505(a) and 506(b).
FACTS
The City of New York’s Obligation to Provide Safe Shelter Placements
47. In 1938, after years of economic hardship that devastated the poorest residents of
New York State, New York adopted Article XVII of the State Constitution to ensure that no New
Yorker would lack for basic needs.
13
13 of 56
FILED: ROCKLAND COUNTY CLERK 09/29/2021 02:30 PM INDEX NO. 452069/2020
034885/2021
NYSCEF DOC. NO. 1
46 RECEIVED NYSCEF: 10/28/2020
09/29/2021
48. Article XVII establishes that New York State must provide for the needy, stating
that “[t]he 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.”
49. The New York Court of Appeals has recognized that Article XVII created a
“mandate[]” that requires New York State and its subdivisions to take action when necessary.
Tucker v. Toia, 43 N.Y.2d 1, 7 (1977). According to the Court of Appeals, under Article XVII,
“the provision for assistance to the needy is not a matter of legislative grace; rather, it is
specifically mandated by our Constitution.” Id.
50. In 1981, following a ruling of this Court in Callahan v. Carey, Sup. Ct. N.Y. Co.
Index No. 42582/79, that Article XVII required that shelter be provided to homeless single adult
men, the City entered into a consent decree that established a right to shelter. In a subsequent
case, the provisions of the consent decree were held to apply with equal force to eligible, single,
homeless, adult women. Eldredge v. Koch, 98 A.D.2d 675, 469 N.Y.S.2d 744 (1st Dep’t 1983).
Petitioner Coalition for the Homeless was appointed the independent monitor of the single adult
shelter system by the Callahan court in order to confirm the City’s compliance with these orders.
51. New York courts have long recognized that Article XVII provides New Yorkers
with a right to shelter without placing their health at significant risk. See Barnes v. Koch, 518
N.Y.S.2d 539, 542–43 (Sup. Ct. 1987) (finding homeless individuals’ entitlement to shelter
under Article XVII “necessarily includes the right to be sheltered free of potentially significant
health threats”). Indeed, “implicit in the term shelter is a requirement that individuals involved
not be placed in a situation directly threatening to their health.” Id. at 542. As such,
14
14 of 56
FILED: ROCKLAND COUNTY CLERK 09/29/2021 02:30 PM INDEX NO. 452069/2020
034885/2021
NYSCEF DOC. NO. 1
46 RECEIVED NYSCEF: 10/28/2020
09/29/2021
Respondents have a constitutional obligation to place homeless individuals in “shelter[s] that
do[] not risk their health.” Id.
52. New York courts have the authority to ensure that Respondents fulfill their
constitutional responsibilities toward homeless individuals. The Court of Appeals has held that
“it is the province of the Judicial branch to define, and safeguard, rights provided by the New
York State Constitution, and order redress for violation of them.” Campaign for Fiscal Equity
Inc. v. New York, 100 N.Y.2d 893, 925 (2003). New York courts also have “the equitable power
to enforce minimum standards of habitability” with respect to shelter conditions. Barnes, 518
N.Y.S.2d at 542.
53. The Fourteenth Amendment of the U.S. Constitution requires that no state shall
“deprive any person of life, liberty, or property, without due process of law.” U.S. Const.
amend. XIV. Homeless New Yorkers have a property interest in safe shelter placements under
New York State law. The City may not deprive homeless New Yorkers of safe shelter
placements without fair process, including notice and an opportunity to be heard.
54. Title II of the ADA (1) prohibits the City from discriminating against individuals
with disabiliti
Preview
FILED: ROCKLAND COUNTY CLERK 09/29/2021 02:30 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 09/29/2021 EXHIBIT “A” FILED: ROCKLAND COUNTY CLERK 09/29/2021 02:30 PM INDEX NO. 452069/2020 034885/2021 NYSCEF DOC. NO. 1 46 RECEIVED NYSCEF: 10/28/2020 09/29/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK MORLEEN FISHER, TAMARA WILLIAMS, BJ ATHILL, RODAISHA SMITH, GARY CORBIN, COALITION FOR THE HOMELESS, on behalf of themselves and all others similarly situated , Index No. 452069/2020 Petitioners, v. VERIFIED PETITION THE CITY OF NEW YORK; THE NEW YORK CITY DEPARTMENT OF SOCIAL SERVICES; STEVEN BANKS, as Commissioner of the New York City Department of Social Services; THE NEW YORK CITY DEPARTMENT OF HOMELESS SERVICES; JOSLYN CARTER, as Administrator of the New York City Department of Homeless Services, Respondents. Petitioners Morleen Fisher, Tamara Williams, BJ Athill, Rodaisha Smith, Gary Corbin, and Coalition for the Homeless, on behalf of themselves and all others similarly situated, by and through their attorneys The Legal Aid Society and Jenner & Block LLP, allege as follows: INTRODUCTION 1. Petitioners, single adult New Yorkers who are homeless, face disproportionate health risks due to their placement in congregate settings in New York City adult shelter facilities during this once-in-a-century global pandemic. 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. 1 of 56 FILED: ROCKLAND COUNTY CLERK 09/29/2021 02:30 PM INDEX NO. 452069/2020 034885/2021 NYSCEF DOC. NO. 1 46 RECEIVED NYSCEF: 10/28/2020 09/29/2021 2. The COVID-19 pandemic has wrought devastation on the lives and livelihoods of people across the globe, felt particularly acutely in New York. At the time of this filing, the highly contagious, airborne SARS-CoV-2 virus that causes COVID-19 is responsible for more than 19,000 deaths, and suspected of being responsible for an additional 4,600 deaths, in New York City alone. Most public health experts anticipate that the coming months will bring a resurgence, which is already evident in certain communities throughout the City. New cases continue to be diagnosed among shelter residents. 3. People experiencing homelessness are among New York City’s most vulnerable and marginalized populations, and they have been hit particularly hard amidst this crisis. At the beginning of the pandemic, in March 2020, there were over 19,000 single adults in New York City shelters run by Respondent DHS, including over 14,000 in congregate dorms, at least 3,500 in commercial hotel placements, and more than 1,400 in safe havens and stabilization beds, which are provided in both congregate and non congregate settings.1 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. The mortality rates only partially capture the destructive toll of the pandemic; many more who survive the disease face potentially long-lasting detrimental health effects as a result. 1 Safe havens differ from traditional shelters in that they are often smaller, employ a higher ratio of social services staff and fewer law enforcement staff, exercise flexibility in their rules and better tailor service plans to meet individual needs. See Coalition for the Homeless, State of the Homeless 2020 at p. 14 (Mar. 10, 2020), https://www.coalitionforthehomeless.org/wp-content/uploads/2020/03/StateofTheHomeless2020.pdf. Stabilization beds are low-threshold private rented rooms (often with shared bathrooms) for clients who have been chronically unsheltered. The City of New York, Dept. of Social Services, The Journey Home: An Action Plan to End Long-Term Street Homelessness at p. 8 (Sep. 17, 2020), https://www1.nyc.gov/assets/dhs/downloads/pdf/the- journey-home-2019-print-web.pdf. 2 2 of 56 FILED: ROCKLAND COUNTY CLERK 09/29/2021 02:30 PM INDEX NO. 452069/2020 034885/2021 NYSCEF DOC. NO. 1 46 RECEIVED NYSCEF: 10/28/2020 09/29/2021 4. Although medical knowledge about the way the virus spreads and solutions to slow it have been evolving over the last several months, certain effective prevention measures have been clear from the beginning of the pandemic. Almost universally, scientists, medical professionals, public officials and individuals across the country, including in New York City, have recognized that, due to the virus’ ability to propagate through respiratory droplet and airborne transmission, social distancing—keeping apart from others who may have been exposed—is an essential component of minimizing risk during the COVID-19 pandemic. 5. The federal Centers for Disease Control and Prevention (“CDC”) has confirmed that the virus spreads through airborne transmission: via tiny particles released from an infected person breathing or speaking. These particles can hang in the air in enclosed spaces for hours even after an infected person has left the space. In environments with inadequate air circulation, aerosol spread can cause infections among people who are more than six feet apart, even with rigorous protocols such as temperature checks, sterilization of surfaces and hand washing in place. 6. 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. Petitioners include the following individuals: Petitioner Morleen Fisher is currently placed at a congregate shelter in Manhattan, where she shares a sleeping area with approximately ten unrelated individuals and a bathroom with around twenty unrelated individuals. Ms. Fisher is a smoker and has diabetes, both categorized as high-risk factors for severe illness by the CDC if she were to contract SARS-CoV-2. She has also been diagnosed with bipolar disorder and post-traumatic stress disorder (“PTSD”). When she requested a single room and private bathroom due to her inability to socially distance in her current placement, she was told that “DHS does not put crazy people in hotels.” In addition to her own medical vulnerabilities, Ms. Fisher is 3 3 of 56 FILED: ROCKLAND COUNTY CLERK 09/29/2021 02:30 PM INDEX NO. 452069/2020 034885/2021 NYSCEF DOC. NO. 1 46 RECEIVED NYSCEF: 10/28/2020 09/29/2021 currently employed as an in-home aide to an elderly couple in the Upper East Side and fears spreading the virus to her clients. Petitioner Tamara Williams is currently placed in a congregate shelter in Manhattan, where she shares a sleeping area with about eleven unrelated individuals and a bathroom with approximately twenty unrelated individuals. Ms. Williams has a history of heart failure and has been diagnosed with Type II diabetes and chronic obstructive pulmonary disease (“COPD”), both of which are categorized as high-risk factors for severe illness for COVID-19 by the CDC if she were to contract SARS- CoV-2. She is employed part-time as a counselor for a non-profit behavioral health center. She currently works remotely. Petitioner BJ Athill is currently placed in a double-occupancy hotel room in downtown Manhattan, where he shares a sleeping area and bathroom with one other person. He has been diagnosed with chronic bronchial asthma (requiring him to use an electric nebulizer), which the CDC categorizes as a condition that might put him at an increased risk of severe illness from COVID-19 if he were to contract SARS-CoV-2. He is employed at a large grocery store in Manhattan, and he must take public transportation to get to and from work. He is also in a training program to become a driver for the Access-A-Ride Paratransit Service, which provides transportation for individuals who cannot otherwise use the City’s subway and bus system. Petitioner Rodaisha Smith is currently placed in a double-occupancy hotel room in midtown Manhattan, where she shares a sleeping area and a bathroom with one other person. She does not know how her roommate spends her days outside of the hotel. Ms. Smith works at a national nonprofit organization as a Residential Direct Support Professional. Her current clients include two men living in Manhattan who would face severe health complications if they were to contract SARS-CoV-2. Ms. Smith uses the subway to get to work. Petitioner Gary Corbin is homeless and living unsheltered on the streets.2 He has been diagnosed with heart disease as a result of his cancer treatment, which is categorized as a high-risk factor for severe illness for COVID-19 by the CDC if he were to contract SARS-CoV-2. He was previously placed in a double- occupancy hotel room, but his roommate’s activities put him at high risk of becoming sick with COVID-19. When shelter staff refused his request for a single room, he left shelter because of his fear of getting sick. He spends approximately half the month in hotels using money from his Social Security Disability payments, but, once the money runs out each month, he sleeps on the streets. 2 On October 22, 2020, the day of the filing of this Verified Petition, Mr. Corbin was informed that he would be placed in a single-occupancy hotel room. However, he had not received his room placement by the time this petition was filed. 4 4 of 56 FILED: ROCKLAND COUNTY CLERK 09/29/2021 02:30 PM INDEX NO. 452069/2020 034885/2021 NYSCEF DOC. NO. 1 46 RECEIVED NYSCEF: 10/28/2020 09/29/2021 7. Recognizing the clear and pressing public health emergency posed by COVID-19, the Federal Emergency Management Agency (“FEMA”) authorized disaster relief funding for local governments to place individuals who are homeless into hotel rooms—left largely vacant during the pandemic—so that these individuals may safely socially distance and protect themselves and the communities in which they live from further spread of the virus. 8. 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. Failing to acknowledge the risk of aerosol transmission in congregate spaces, Respondents initially resisted moving the vast majority of single homeless adults to hotel rooms, inexplicably citing cost as a reason for keeping people in congregate shelters, despite the availability of federal reimbursement for at least 75 percent of the hotel rates. 9. When Respondents finally began to move individuals from congregate shelters into vacant hotel rooms, they presumed that mask use and six feet of distance between individuals was enough to fully protect residents and staff and therefore it would be safe to allow thousands of people to remain in congregate shelters. Relying on this outdated public health guidance, they placed many of those who moved to hotels in double-occupancy rooms, which they shared with another unrelated individual, still failing to provide appropriate shelter placements that would allow them to safely socially distance. Respondents also relied on an ill- defined and paternalistic claim that they were applying the principles of “harm reduction”—an approach to management of drug use that seeks to minimize negative outcomes—to justify relegating some single adults to continued congregate placement on the basis of exaggerated 5 5 of 56 FILED: ROCKLAND COUNTY CLERK 09/29/2021 02:30 PM INDEX NO. 452069/2020 034885/2021 NYSCEF DOC. NO. 1 46 RECEIVED NYSCEF: 10/28/2020 09/29/2021 fears of the risk of self-harm. As a result, people living in congregate shelters and double- occupancy hotel rooms continue to test positive for the virus and carry it, in their daily activities, throughout the City. 10. 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. Without any guidance from Respondents, the shelter providers were left to make ad-hoc and standardless assessments of need, with the result that these crucial determinations were made in an arbitrary and capricious manner without the appropriate and required assessments of their clients’ individual needs. 11. Furthermore, many people living unsheltered on the streets of New York City remain there, at risk of injury or death from exposure, because they fear the health consequences of coming into shelters and being placed in a setting in which they cannot properly socially distance. 12. Under Article XVII, Section 1 of the New York Constitution, Respondents are required to provide “aid, care and support of the needy.” New York courts have long interpreted this mandate to include the provision of shelter placements to individuals who are homeless that are free of serious risks to their health. In light of this fundamental right, Respondents’ failure to provide safe shelter placements where the individual Petitioners and other single adult homeless New Yorkers can adequately socially distance when the means to do so are readily available is an unjustified, arbitrary, and capricious refusal to carry out a clearly established solution to a life-threatening pandemic. 6 6 of 56 FILED: ROCKLAND COUNTY CLERK 09/29/2021 02:30 PM INDEX NO. 452069/2020 034885/2021 NYSCEF DOC. NO. 1 46 RECEIVED NYSCEF: 10/28/2020 09/29/2021 13. The individual Petitioners are homeless single adults living in New York City who have been denied the option to move to a single-occupancy hotel room; they either are still living in congregate shelters, are sharing a double-occupancy hotel room with an unrelated individual, or have refused to enter shelters because of the risks associated with being housed with unrelated individuals. Several of the Petitioners have conditions that put them at high risk of death if they were to contract SARS-CoV-2. Petitioner Coalition for the Homeless brings this action pursuant to its role as the Court-appointed monitor of DHS’s single adult shelter system and its mission, well-recognized by New York courts, of advocating for homeless New Yorkers who are similarly at risk, many of whom have severe barriers to self-advocacy. 14. Pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq (the “ADA”), and Section 504 of the New York Rehabilitation Act of 1973 (the “Rehabilitation Act”), Respondents must provide reasonable accommodations to individuals with disabilities. By failing to provide single-occupancy hotel rooms to homeless individuals with medical conditions that put them at high risk of death if they were to contract SARS-CoV-2, Respondents have acted in violation of the ADA and the Rehabilitation Act. 15. Respondents have also violated the constitutional rights of the Petitioners, by failing to provide individualized determinations as to their right to a single-occupancy hotel room. Instead, Respondents are operating in an arbitrary manner, leaving Petitioners and all homeless New Yorkers, including individuals at higher risk of death if they were to contract SARS-CoV-2, without notice of their right to safe shelter placements and a process by which to obtain them. 7 7 of 56 FILED: ROCKLAND COUNTY CLERK 09/29/2021 02:30 PM INDEX NO. 452069/2020 034885/2021 NYSCEF DOC. NO. 1 46 RECEIVED NYSCEF: 10/28/2020 09/29/2021 16. Respondents have also violated Petitioners’ rights by segregating Petitioners with certain disabilities in congregate facilities, which pose a dangerously increased risk of contracting SARS-CoV-2. 17. In this action, Petitioners seek this Court’s intervention to provide potentially life- saving relief and a clear remedy that is available to Respondents: the offer of a single-occupancy hotel room for each individual Petitioner and every single adult homeless New Yorker until public health authorities determine it is safe to return to congregate settings. PARTIES Morleen Fisher 18. Petitioner Morleen Fisher is currently homeless and resides in a congregate shelter in downtown Manhattan. (Fisher Aff. ¶ 1.) 19. Ms. Fisher is 55 years old, and she has been diagnosed with diabetes, PTSD, and bipolar disorder. She also experiences lung-related discomfort and shortness of breath as she is an active smoker. Her age and health conditions put her at an increased risk for severe illness from COVID-19 according to the CDC if she were to contract SARS-CoV-2. (Id. ¶ 3.) 20. At her shelter, Ms. Fisher shares a sleeping area with approximately ten unrelated individuals and a bathroom with approximately twenty unrelated individuals. (Id. ¶ 4.) 21. Ms. Fisher is currently employed part-time as an in-home aide to an elderly couple on the Upper East Side. Ms. Fisher uses public transportation to commute between her shelter placement and her place of employment. She is extremely concerned about the risk of contracting SARS-CoV-2 and inadvertently transmitting it to the couple for whom she works, given that they are also at high risk for severe COVID-19 complications. When Ms. Fisher requested access to a private room and bathroom (such as a hotel room placement) to properly 8 8 of 56 FILED: ROCKLAND COUNTY CLERK 09/29/2021 02:30 PM INDEX NO. 452069/2020 034885/2021 NYSCEF DOC. NO. 1 46 RECEIVED NYSCEF: 10/28/2020 09/29/2021 social distance, shelter staff denied her request stating, “DHS does not put crazy people in hotels.” (Id. ¶¶ 6–9.) Tamara Williams 22. Petitioner Tamara Williams is currently homeless and resides in a congregate shelter in downtown Manhattan. (Williams Aff. ¶ 1.) 23. She is 64 years old, and she has a history of heart failure and is diagnosed with Type II diabetes, COPD, and schizoaffective disorder. Ms. Williams has to frequently use a nebulizer to stabilize her breathing. Her age and health conditions put her at an increased risk for severe illness from COVID-19 according to the CDC if she were to contract SARS-CoV-2. (Id. ¶¶ 1, 3.) 24. Ms. Williams currently shares a sleeping area with about eleven unrelated individuals and a bathroom with approximately twenty unrelated individuals. (Id. ¶ 4.) 25. Despite her fears of contracting the virus, staff at her shelter never notified her that she could request a reasonable accommodation to be transferred to a single room. (Id. ¶ 7.) 26. She is employed part-time as a counselor for a non-profit behavioral health center and currently works remotely. (Id. ¶ 6.) BJ Athill 27. Petitioner BJ Athill is currently homeless and resides in a hotel in downtown Manhattan. (Athill Aff. ¶ 1.) 28. He has been diagnosed with chronic bronchial asthma, which puts him at an increased risk for severe illness from COVID-19 according to the CDC if he were to contract SARS-CoV-2. He uses an electric nebulizer to manage his asthma. (Id. ¶ 3.) 29. He shares a bedroom and a bathroom with one unrelated individual. (Id. ¶ 4.) 9 9 of 56 FILED: ROCKLAND COUNTY CLERK 09/29/2021 02:30 PM INDEX NO. 452069/2020 034885/2021 NYSCEF DOC. NO. 1 46 RECEIVED NYSCEF: 10/28/2020 09/29/2021 30. Mr. Athill is currently employed at a large grocery store in downtown Manhattan. He is also enrolled in a training program to become a driver for Access-A-Ride, the New York City transportation service for people with disabilities who cannot ride public transportation. He uses public transportation to travel between his shelter placement and his job. (Id. ¶ 6.) 31. Despite his fears of contracting the virus, staff at Mr. Athill’s shelter never notified him that he could request a reasonable accommodation to be transferred to a single room. (Id. ¶ 9.) Rodaisha Smith 32. Petitioner Rodaisha Smith is currently homeless and resides in a hotel in midtown Manhattan. (Smith Aff. ¶ 1.) 33. She shares a bedroom and a bathroom with one unrelated individual. She does not know where her roommate spends her time outside of the hotel and is afraid that her roommate will expose her to SARS-CoV-2. (Id. ¶ 3.) 34. Ms. Smith is currently employed as a Residential Direct Support Professional at a national non-profit organization, where she works the overnight shift. Her current clients include two men who would face severe health complications if they contracted the virus that causes COVID-19. Ms. Smith is extremely concerned about the risk of contracting SARS-CoV-2 and giving it to her clients. She uses public transportation to travel between her shelter placement and her job. (Id. ¶¶ 4–7.) Gary Corbin 35. Petitioner Gary Corbin is currently homeless and lives unsheltered on the streets. (Corbin Aff. ¶ 1.) 10 10 of 56 FILED: ROCKLAND COUNTY CLERK 09/29/2021 02:30 PM INDEX NO. 452069/2020 034885/2021 NYSCEF DOC. NO. 1 46 RECEIVED NYSCEF: 10/28/2020 09/29/2021 36. Mr. Corbin has a full right leg prosthesis, a result of his cancer treatment. His cancer treatment also caused him to have heart disease, which puts him at an increased risk of severe illness from COVID-19 according to the CDC if he contracts SARS-CoV-2. He also has liver damage as a result of hepatitis C, and he has been diagnosed with bi-polar II disorder, which he controls with medication. (Id. ¶¶ 3–4.) 37. Mr. Corbin was previously placed in a double-occupancy hotel room by DHS, but he did not feel safe remaining in the hotel room because his roommate’s actions exposed him to a high level of risk of contracting SARS-CoV-2 and negatively impacted his mental health. Mr. Corbin asked the shelter staff if he could have his own hotel room as a result of his risk factors, but the staff denied his request. As a result, Mr. Corbin uses his Social Security Disability income to stay in hotel rooms until he runs out of money and has to sleep on the streets. He can usually only afford to stay in a hotel approximately half of the nights in a given month. (Id. ¶¶ 6–8.) 38. Mr. Corbin is too afraid to return to a shelter placement in a double-occupancy room or congregate space because of the risk to his health if he becomes ill with COVID-19. (Id. ¶¶ 11–12.) Coalition for the Homeless 39. Organizational Petitioner Coalition for the Homeless (hereinafter the “Coalition”) is the nation’s oldest advocacy and direct service organization helping homeless men, women, and children. The Coalition, founded in 1981, assists more than 3,500 New Yorkers each day who are homeless or who are at risk of homelessness. The Coalition’s advocacy protects the rights of homeless people because the Coalition serves as a plaintiff in litigation regarding the right to emergency shelter, the right to vote, and housing and services for homeless people living 11 11 of 56 FILED: ROCKLAND COUNTY CLERK 09/29/2021 02:30 PM INDEX NO. 452069/2020 034885/2021 NYSCEF DOC. NO. 1 46 RECEIVED NYSCEF: 10/28/2020 09/29/2021 with mental illness and HIV/AIDS. The Coalition operates 11 frontline direct service programs, offering vital services to homeless, at-risk, and low-income New Yorkers, including individual advocacy and case management services to over 1,000 homeless and at-risk households each month with referrals for shelter and emergency food programs and assistance with public benefits. The Coalition seeks to bring this claim as an organization on behalf of the population that is threatened by DHS’s actions and inactions. The Coalition plays a unique role advocating on behalf of individuals who have severe barriers to self-advocacy in this context. 40. The Coalition brought landmark litigation on behalf of homeless men and women in Callahan v. Carey and Eldredge v. Koch, and was a plaintiff in the consolidated cases establishing a right to shelter and guaranteeing basic standards for shelters for homeless men and women. See Callahan v. Carey, 12 N.Y.3d 496 (2009). Pursuant to the Callahan consent decree, the Coalition serves as the court-appointed monitor of municipal shelters for homeless adults. Id. The City has also appointed the Coalition to be the monitor for the family shelter system. The Coalition was also a plaintiff in Butler v. City of New York, in which the City agreed to comprehensive relief to protect individuals and families including people with disabilities in the New York City shelter system. See Butler Stipulation of Settlement, 15 Civ. 03783 (S.D.N.Y) (November 7, 2017) (“Butler Stipulation”). 41. The Coalition has expended extensive time and resources in addressing the needs of shelter residents and unsheltered homeless New Yorkers at risk of contracting COVID-19. The Coalition is directly harmed by Respondents’ failure to adequately safeguard homeless New Yorkers or provide them adequate due process as described above by having to devote its own resources and staff time to correcting these failures on behalf of individual clients and groups of clients. 12 12 of 56 FILED: ROCKLAND COUNTY CLERK 09/29/2021 02:30 PM INDEX NO. 452069/2020 034885/2021 NYSCEF DOC. NO. 1 46 RECEIVED NYSCEF: 10/28/2020 09/29/2021 42. Respondent City of New York is a municipal corporation chartered under the laws of the State of New York. The City of New York receives federal funding and is subject to the provisions of the Rehabilitation Act, as well as Title II of the ADA; the New York State Human Rights Law (Executive Law § 296); and the New York City Human Rights Law (N.Y.C. Administrative Code § 8-107(4)(a)). 43. Respondent Steven Banks, as the Commissioner of DSS, is the head of an executive agency of the City of New York, which has responsibility for the operation and administration of the shelter programs for New York City residents. The DSS principal place of business and the Commissioner’s business address is 150 Greenwich Street, New York, NY 10007. 44. Respondent Joslyn Carter is the Administrator of DHS, which is the sub-agency of DSS. The DHS principal place of business and the Administrator’s business address is 33 Beaver Street, New York, NY 10004. JURISDICTION AND VENUE 45. CPLR § 7804 confers jurisdiction on this Court. See CPLR § 7804(b) (“A proceeding under this article shall be brought in the supreme court . . . .”). 46. Venue lies properly in New York County pursuant to CPLR §§ 505(a) and 506(b). FACTS The City of New York’s Obligation to Provide Safe Shelter Placements 47. In 1938, after years of economic hardship that devastated the poorest residents of New York State, New York adopted Article XVII of the State Constitution to ensure that no New Yorker would lack for basic needs. 13 13 of 56 FILED: ROCKLAND COUNTY CLERK 09/29/2021 02:30 PM INDEX NO. 452069/2020 034885/2021 NYSCEF DOC. NO. 1 46 RECEIVED NYSCEF: 10/28/2020 09/29/2021 48. Article XVII establishes that New York State must provide for the needy, stating that “[t]he 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.” 49. The New York Court of Appeals has recognized that Article XVII created a “mandate[]” that requires New York State and its subdivisions to take action when necessary. Tucker v. Toia, 43 N.Y.2d 1, 7 (1977). According to the Court of Appeals, under Article XVII, “the provision for assistance to the needy is not a matter of legislative grace; rather, it is specifically mandated by our Constitution.” Id. 50. In 1981, following a ruling of this Court in Callahan v. Carey, Sup. Ct. N.Y. Co. Index No. 42582/79, that Article XVII required that shelter be provided to homeless single adult men, the City entered into a consent decree that established a right to shelter. In a subsequent case, the provisions of the consent decree were held to apply with equal force to eligible, single, homeless, adult women. Eldredge v. Koch, 98 A.D.2d 675, 469 N.Y.S.2d 744 (1st Dep’t 1983). Petitioner Coalition for the Homeless was appointed the independent monitor of the single adult shelter system by the Callahan court in order to confirm the City’s compliance with these orders. 51. New York courts have long recognized that Article XVII provides New Yorkers with a right to shelter without placing their health at significant risk. See Barnes v. Koch, 518 N.Y.S.2d 539, 542–43 (Sup. Ct. 1987) (finding homeless individuals’ entitlement to shelter under Article XVII “necessarily includes the right to be sheltered free of potentially significant health threats”). Indeed, “implicit in the term shelter is a requirement that individuals involved not be placed in a situation directly threatening to their health.” Id. at 542. As such, 14 14 of 56 FILED: ROCKLAND COUNTY CLERK 09/29/2021 02:30 PM INDEX NO. 452069/2020 034885/2021 NYSCEF DOC. NO. 1 46 RECEIVED NYSCEF: 10/28/2020 09/29/2021 Respondents have a constitutional obligation to place homeless individuals in “shelter[s] that do[] not risk their health.” Id. 52. New York courts have the authority to ensure that Respondents fulfill their constitutional responsibilities toward homeless individuals. The Court of Appeals has held that “it is the province of the Judicial branch to define, and safeguard, rights provided by the New York State Constitution, and order redress for violation of them.” Campaign for Fiscal Equity Inc. v. New York, 100 N.Y.2d 893, 925 (2003). New York courts also have “the equitable power to enforce minimum standards of habitability” with respect to shelter conditions. Barnes, 518 N.Y.S.2d at 542. 53. The Fourteenth Amendment of the U.S. Constitution requires that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV. Homeless New Yorkers have a property interest in safe shelter placements under New York State law. The City may not deprive homeless New Yorkers of safe shelter placements without fair process, including notice and an opportunity to be heard. 54. Title II of the ADA (1) prohibits the City from discriminating against individuals with disabiliti