Right to Safe and Adequate Emergency Housing for Families with Children

Boston v. City of New York, Index No. 402295/08 (Sup. Ct. N.Y. Co.)

Nature of the case: This action represents the culmination of four long-standing cases (McCain v. Bloomberg / Lamboy v. Doar / Slade v. Bloomberg / Cosentino v. Carrion) brought by Legal Aid on behalf of homeless families with children in New York City. The Court approved a settlement in Boston on December 12, 2008. Under the settlement, each of the four cases above was concluded with a final judgment. The orders previously issued in those cases were vacated and replaced with the relief in the Boston class action, which is outlined below.

Current Status: The Boston settlement provides for permanent relief as well as additional relief that will remain in place until at least December 31, 2010. Additionally, the settlement provides for enforcement mechanisms and makes provision for the City to pay fines to families who were found eligible for emergency shelter but suffered violations of some of the orders in the McCain litigation.

Permanent relief:

  • The City cannot deny shelter to families with children who lack alternate housing.
  • The City cannot deny shelter to families with children who are applying for shelter and qualify for shelter under applicable law [for example, families who meet the “immediate needs” criteria under the City’s re-applicant procedure].
  • Shelter provided to families with children must be “safe, sanitary and decent as defined by applicable law” [including the local shelter conditions laws, the housing maintenance code, 18 N.Y.C.R.R. Part 900 regulations on shelter conditions, local laws on lead paint, etc.].
  • The City must place families in a “timely and appropriate manner as defined by applicable law” [for example, by maintaining a facility open for intake 24/7, by providing a shelter placement to every family who has applied by 10 p.m., and by not sending families to consecutive “overnight” placements].
  • Families with children can contest the City’s determinations of ineligibility for shelter at State administrative hearings, which shall be scheduled on a “priority” basis. The State will apply the City’s procedures regarding eligibility, discussed below, at those hearings.
  • The City is enjoined from placing homeless families containing pregnant women or children under six months of age in “barracks-style” shelters [shelters with communal sleeping areas].

The Cosentino litigation is resolved based on the holding reported at Cosentino v. Perales, 153 A.D.2d 812 (1st Dep’t 1989) [there is a “fundamental State interest in preserving family integrity” that requires social services officials to “provide assistance, care and services to maintain children together with their parents,” including housing and shelter services].

Relief in Place Until At Least December 31, 2010

In addition, the City must have in place the following procedures regarding shelter eligibility:

  • The City “shall conduct an adequate investigation” into whether a family has other housing available to them.
  • Families applying for shelter must “cooperate in the investigation and provide evidence of homelessness by providing reasonably available information and documents regarding their need.”
  • The City must assist families “in securing necessary information and documents from other government agencies and third-parties to the extent reasonably available.”
  • The City shall not find families ineligible for shelter solely because a third-party is not cooperating with the City’s investigation or because families are unable to provide requested documentation.
  • The City must consider information or documents submitted at any point in the eligibility process.
  • The City must consider all relevant facts through the eligibility process, “including whether housing options are unsafe or overcrowded and therefore not available to the family.”
  • When making eligibility decisions and shelter placements, the City must consider a family’s “domestic violence, medical or child welfare issues.”
  • The City must ask families applying for shelter whether primary tenants at a potential housing location have any domestic violence, medical or child welfare issues and shall consider such issues [the City previously had waited to see if families raised these issues themselves].
  • The City must promptly refer family members who may be domestic violence victims to a worker with specific training in domestic violence issues “whose determination regarding domestic violence issues [e.g., domestic violence status or the unsuitability of certain addresses or boroughs] shall govern”. Pending that determination, all investigations [such as field investigations or phone interviews] must cease, with the exception of the currently pending initial interview.
  • Families have a right to receive a written notice saying whether or not they are eligible or ineligible for shelter.
  • Families may reapply for shelter at any time.
  • The City can only terminate shelter for families in accordance with the law.
  • A permanent address is not required to be eligible for or to continue to receive public benefits including cash assistance, food stamps and Medicaid.
  • Legal representatives providing assistance to a specific family can visit the family in their individual shelter units or in other areas of a shelter facility. If other families approach the representative during that visit, the representative may also provide assistance to those families and visit them in their units.
  • Legal representatives can accompany families they are representing during their application at Path, and if other families approach the representative during their time at Path, the representative may also provide assistance to those families.
  • The City will post certain application and eligibility data, including data regarding the “immediate needs” process, on the DHS website.

Enforcement

  • Any claim that the provisions in the final judgment have been violated must be brought in a new action, where the provisions may be enforced by any Justice of the Supreme Court who may use any available remedies to achieve compliance.
  • The December 31, 2010 expiration date, which affects some but not all of the relief in the final judgment, may be extended in a newly commenced action upon a demonstration of systemic non-compliance.

Fines

Over the past two decades, the Legal Aid Society has won a series of court orders requiring the City of New York to pay fines to homeless families with children who were unlawfully denied shelter -- either because the families were kept overnight on the floors and benches of the City's Emergency Assistance Unit offices or because they had to endure multiple "overnight" shelter placements lasting just a few hours. The fines are in the amount of $150 per family per incident. The City has completed payments totaling over $5 million to families who were illegally denied shelter between 1991 and early 1995.

Pursuant to an order entered in the Boston case, the City is now in the process of paying homeless families who were unlawfully denied shelter between June 16, 1995, and December 31, 2005. The City has identified over 29,000 families owed more than $15 million in fines for this period. To date, approximately $3 million in fines remain unpaid, and the Department of Homeless Services, working with Legal Aid, is continuing to identify and locate families pursuant to the order. Families who were kept overnight in the EAU or who experienced unlawful overnight placements between 1995 and 2005 who believe that they are still owed fines payments should contact Legal Aid's Homeless Rights Project at 1-800-649-9125.

No. Persons Affected: Approximately 9,000 homeless families with children reside in the City’s family shelter system, including approximately 11,900 adults and 16,400 children. Over 29,000 homeless families with children are owed more than $15 million in fines.