Legal Aid Wins Bid To Be Notified of City Plans to Evict Homeless
FRIDAY, JUNE 05, 2009

The New York Court of Appeals, in a 6-0 decision, required New York City to provide The Legal Aid Society with notices of shelter terminations before evicting homeless men and women. The decision was hailed as a major victory for the legal right to shelter for homeless adults in New York City. "The decision vindicates the important principles that mentally ill and disabled homeless single men and women are entitled to have counsel," Steven Banks, Attorney-in-Chief of The Legal Aid Society, told the New York Law Journal.

Banks argued Callahan v. Carey before the State's High Court for The Legal Aid Society and the Coalition for the Homeless. Amanda Moretti, a staff attorney at the Society, worked on the case with Banks. In a statement, Mary Brosnahan, Executive Director of the Coalition for the Homeless, said that the decision helps to prevent hundreds of homeless adults from being wrongfully evicted from shelters onto our streets. "As the number of homeless New Yorkers continues to rise, these protections are increasingly critical to protecting poor New Yorkers, by keeping them safe and off our city’s streets."

The New York Law Journal
Legal Aid Wins Bid to Be Notified of City Plans to Evict Homeless
June 5, 2009
By Joel Stashenko

ALBANY - New York City must notify the Legal Aid Society when it intends to evict homeless men and women from city shelters, the Court of Appeals decided yesterday.

The "broadly worded" terms of a 1981 consent decree provide that the Legal Aid Society, the designated representatives of the homeless, should have "access to any records relevant to enforcement and monitoring" of the decree, the 6-0 Court held in Callahan v. Carey , 98.

That includes Legal Aid's demand that its attorneys be notified whenever the city has told shelter residents they are to be evicted for misbehavior or for other conduct that makes them ineligible to receive housing and welfare assistance, the Court held.

"We simply cannot say that sanction notices are irrelevant to the City defendants' compliance with their obligation under the decree to provide decent shelter for homeless adults," Judge Susan Phillips Read wrote for the Court.

The so-called Callahan decree, entered into by the administrations of former New York City Mayor Edward I. Koch and former Governor Hugh L. Carey, guaranteed shelter and board for single, homeless adults.

While Judge Read wrote that no one is suggesting that New York City or its Department of Homeless Services would consider "improper mass evictions" of adult shelter residents, such a result would be at least "theoretically" possible if terms of the consent decree are not adhered to strictly.

She likened the consent decree to a contract and said its terms must be interpreted "in light of its plain language." The parties to the agreement undoubtedly had their reasons in 1981 for broadly phrasing the provision on the Legal Aid Society's access to information in paragraph 11 of the consent decree, Judge Read wrote, and to the extent that the city now feels the decree has become "outmoded and cumbersome," it is free to attempt to negotiate a new deal.

Yesterday's ruling reversed the finding of an Appellate Division, First Department, panel that the city need not notify Legal Aid when seeking to evict adult shelter residents (NYLJ, July 10, 2008 ). That ruling, in turn, had overturned a 2006 determination by Manhattan Supreme Court Justice Stanley L. Sklar (See Profile ), who found that prior notices to Legal Aid were required.

Since 2004, the Department of Homeless Services has sought to enforce a 1995 regulation mandating that shelter residents comply with work and conduct rules and other requirements in order to remain eligible to live in shelters. In an earlier ruling in the much-litigated case, Callahan v. Carey, 307 AD2d 150 (2003), a First Department panel upheld the authority of the city to expel adults from shelters if they fail to stay eligible for welfare and housing assistance.

When informed of an impending eviction, residents have a 60-day window to request a state hearing to challenge a sanction notice. The failure to challenge a sanction within 10 days can result in a resident's expulsion from a city-run shelter until the non-compliance stops or for 30 days, whichever period is longer.

Steven Banks, attorney-in-charge at the Legal Aid, argued Callahan before the Court of Appeals.

He said in an interview yesterday that the Legal Aid Society has intervened successfully in all but one of 50 cases since 2004 where the city has attempted an eviction.

The consent decree expressly provides for the mentally ill and disabled to have access to city-operated shelters, Mr. Banks said.

"The decision vindicates the important principles that mentally ill and disabled homeless single men and women are entitled to have counsel," Mr. Banks said.

Legal Aid Society staff attorney Amanda Moretti worked on the case with Mr. Banks.

The city argued before the Court of Appeals and in its brief that there are a number of safeguards in place to prevent the evictions of residents who are guaranteed shelter under the consent decree. The city also contended that advocates for the homeless have been trying to use the notification dispute to challenge programmatic changes in the shelters that were never at issue in the consent decree, and to introduce judicial oversight of the Department of Homeless Services' implementation of a "client responsibility" initiative.

As of Wednesday, there were 34,792 people in city homeless shelters, 6,814 of them single adults, according to the Department of Homeless Services.

Senior Counsel Alan G. Krams of the Law Department argued for the city.

Chief Judge Jonathan Lippman did not take part in yesterday's ruling.

Corporation Counsel Michael A. Cardozo said yesterday that the Court narrowly confined its ruling to the question of Legal Aid notification. It rejected the argument that the Department of Homeless Services' Client Responsibility Program falls under the consent decree and judicial oversight, he said.

Mr. Cardozo has generally sought an end to consent decrees, an argument he renewed yesterday. He said the Court used the word "theoretically" to describe the possibility that the city could move to unfairly expel large numbers of homeless people without the consent decree.

"That the ruling is grounded in the unlikely and hypothetical prospect of future misconduct shows that decades of judicial oversight of shelter operations has served its purposes," Mr. Cardozo said in a statement. "Serious consideration should be given to end the court's role, as was recently done with the family shelters."