A Homeless Woman’s Victory, After a 25-Year Fight
FRIDAY, SEPTEMBER 19, 2008

The New York Times
By Leslie Kaufman

Steven Banks, attorney in chief of the Legal Aid Society, called Yvonne McCain on Tuesday night to tell her that he was finally settling the lawsuit for homeless families that he had brought in her name 25 years ago.

Back then, Mr. Banks was a just a young staff lawyer, and Ms. McCain, a mother of four young children, was a victim of domestic violence, beaten so badly that she was hospitalized and so frightened that she had nowhere to go.

They stayed in touch over the years, as the lawsuit, originally titled McCain v. Koch, wound its way up the court system and back, resulting in dozens of court orders prescribing how families seeking shelter should be treated and giving Legal Aid remarkable oversight of the city’s Department of Homeless Services.

At a recent dinner, Ms. McCain offered a testimonial to Mr. Banks, saying he had “saved her life.” Indeed, she had gone to college, survived breast cancer and moved from a flophouse in Herald Square to a stable, subsidized apartment on Staten Island, as Anthony DePalma wrote the last time Ms. McCain’s lawsuit made big news, in 2003.

But when Mr. Banks reached Ms. McCain with the most recent news, that the lawsuit had been settled once and for all, she was tired and groggy. She said she was sick again, a cancer relapse. Mr. Banks told her that the city had agreed to a permanent order establishing a right to shelter for homeless families with children.

Ms. McCain, he said, told him: “This is what we went to court for so many years ago. I am glad I lived to see this.”



City, Legal Aid Agree to Settle 25-Year-Old Homeless Suits

The New York Law Journal
By Daniel Wise 

New York City and the Legal Aid Society yesterday agreed to the dismissal of a 25-year-old lawsuit that had resulted in more than 40 court orders regulating the provision of emergency shelter to families with children.

The settlement will lift all court orders issued since the Appellate Division, First Department, in 1986 held in McCain v. Koch, 121AD2d 997, that homeless families have a right to shelter under the state Constitution.

The settlement creates a new mechanism under which the city for the first time acknowledges that homeless families have a constitutional right to shelter. The city also agreed to follow certain procedures in processing families' applications for emergency shelter and making data available about how those applications have been handled.

The settlement provisions detailing case processing and data will sunset at the end of 2010. The Legal Aid Society, however, can resist the expiration provision if, in a newly filed lawsuit, it can show "systemic" violations.

At a news conference yesterday, Mayor Michael R. Bloomberg hailed the dismissal of McCain and several related cases as a "milestone" and "a historic, final end to court involvement" in providing shelter to homeless families.

Corporation Counsel Michael A. Cardozo said the settlement was needed to end court oversight of a system, which, although it employs 21st-century techniques, is governed by a set of orders coming out of the 1980s.

Court oversight had produced "quasi-paralysis" at the agencies responsible for aiding the homeless, he added, because workers, instead of being concerned about making improvements, were "worried that notes they wrote would show up in court hearings."

Ending court oversight and returning full authority "to city commissioners where it belongs" has been a primary objective during his seven years as corporation counsel, Mr. Cardozo said.

He added that the settlement may well serve as "a forerunner" to the end of court supervision in other areas.

Steven Banks, Legal Aid's attorney-in-chief who has personally handled the litigation, said he had agreed to the pact because "only today" has the city recognized its "legal obligation" to provide shelter to homeless families and been willing to create a "legal framework to protect families in the future no matter who the mayor is."

The settlement came two months after Justice Helen Freedman (See Profile), who had presided over the McCain litigation since 1985, was appointed to the First Department bench.

Legal Aid's papers in response to a city motion to lift the McCain-related decrees were due today. The city's motion, which was filed in February 2006, was based on the recommendations of a panel of special masters, appointed upon the agreement of the two sides in 2003.

In 2005, the three-member panel, which included former Fordham University School of Law dean, John D. Feerick, called for an end to court supervision, citing gains made by the Bloomberg administration.

The 40 orders vacated as a part of the settlement included detailed provisions for the assessment of eligibility. Others, issued at a time when families routinely had to stay overnight at a center for processing shelter applications, required the center to have trash cans, soap, changing tables and blankets.

At yesterday's news conference, the mayor said the way to the settlement had been paved by the improvements made since 2002 in providing housing to the homeless.

At the outset of his administration, Mr. Bloomberg recalled walking over young children sleeping in the corridors of the "notorious" center in the Bronx where emergency shelter applications were processed.

Since then, that office has been closed and replaced by a renovated center. Ground was broken this summer on a new $36 million center in the Bronx. No family has had to stay overnight awaiting placement in a shelter since November 2004, the mayor said.

Mr. Bloomberg also noted the success of a program that has enabled 9,500 families and individuals to remain in their homes. In addition, since 2002, 175,000 families and individuals who had been in the city shelter system have been moved into permanent housing.

But in a statement, the Coalition for the Homeless asserted that, as of yesterday, there were 14,400 homeless children in the city, a 31 percent increase over the number of homeless children at the outset of the Bloomberg administration.

Settlement Details

The settlement provides for the dismissal of the McCain case and three cases related to it. It also provides for the filing of a new class action, Boston v. City, 402295/08, and with it a proposed "final judgment" in the form of a stipulation that is to be approved by Justice Jacqueline Silbermann (See Profile), the administrative judge in charge of civil cases in Manhattan Supreme Court.

See the stipulations in Boston v. City of New York, McCain v. Bloomberg, Cosentino v. Carrion and Slade v. Bloomberg.

The stipulation specifies that "eligible homeless families" are "entitled to emergency shelter." The accord also specifies that the city shall provide "shelter facilities for families with children that are safe, sanitary and decent as defined by applicable law." Shelter is to be provided "in a timely and appropriate manner as defined by applicable law."

The agreement provides that those rights may be enforced by filing a new action asking a judge to impose "any available remedies to achieve compliance with a judgment." In seeking enforcement, Legal Aid or any other entity pursuing litigation must seek an "enforcement order" before seeking other "coercive remedies."

The stipulation outlines various procedures the city "shall" have in place regarding shelter assistance. While those provisions are set to expire, "systemic" problems can be cited in future litigation as a basis for extending the provisions beyond the sunset date.

Under a separate agreement with New York state, homeless families can assert claims that the city has failed to adhere to required procedures in administrative proceedings conducted by the Office of Temporary and Disability Assistance.

Among the services required of city workers are assisting shelter applicants to secure documents and information from government agencies and third parties "to the extent reasonably available;" requiring eligibility workers to rule out "unsafe or overcrowded" housing; and referring applicants who may be domestic violence victims to specially trained workers.

Mr. Cardozo said yesterday in an interview that administrative procedures in the agreement are, "with a little tweaking," the procedures that the city's Department of Homeless Services already uses.

The agreement also requires the homeless services agency to publish on its Web site, or by an "equally" effective means, data about families who are initially found ineligible for shelter, but after one or more re-applications in the next 90 days are found eligible.

That data, Mr. Banks said yesterday in an interview, provides "a good indicator of how well the eligibility procedures are operating and whether we should return to court."

Justice Silbermann will determine whether to approve the class action settlement after conducting a fairness hearing. Such a hearing is likely to be conducted within the next six weeks.

Both Mr. Cardozo and Mr. Banks concurred in a brief joint interview that Justice Silbermann had been "very helpful" in "facilitating very difficult discussions" during intense negotiations over the past six weeks.

In a statement yesterday, Alan Levine, chairman of Legal Aid's board of directors, thanked Justice Freedman "for her legal insights, her patience and her commitment to this litigation."

As a part of the settlement, Legal Aid waived its right to seek attorney's fees for work done since 2001. Previously, the agency had been awarded $2.8 million for legal work done through 2001.

For the last three years a team of lawyers from Cravath, Swaine & Moore, led by Richard Clary, has worked pro bono on the case with Legal Aid.

Daniel.Wise@incisivemedia.com