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May 10, 1985

DAISY CANADAY, LUCY ROMAN, MELINDA PANELL, TERESA RODRIGUEZ and REBECCA BOOKER, on behalf of themselves and their children and other dependent minors in their care, and on behalf of all others similarly situated, and the COALITION FOR THE HOMELESS, Plaintiffs
EDWARD I. KOCH, as Mayor of the City of New York, GEORGE GROSS, as Acting Commissioner of the New York City Human Resources Administration, and CESAR A. PERALES, as Commissioner of the New York State Department of Social Services, Defendants

The opinion of the court was delivered by: LEISURE

LEISURE, District Judge:

This case was filed on September 24, 1984, in the Eastern District of New York. After the case was assigned to Judge I. Leo Glasser, defendants moved for an order transferring venue to the Southern District of New York, or in the alternative, staying further proceedings in this case pending resolution of a parallel proceeding in Supreme Court, New York County, entitled McCain, et al. v. Koch, et al., Index No. 41023/83. On December 17, Judge Glasser granted the motion to transfer venue to this District, Canaday v. Koch, No. 84 Civ. 3900 (E.D.N.Y. Dec. 17, 1984). Upon the case's transfer here, defendants indicated they would renew their abstention motion. It is that motion that is now before me.


 The New York City Human Resources Administration ("HRA"), of which defendant Gross is Acting Commissioner, operates a large number of Income Maintenance Centers ("IMC"), which are located throughout the City. Homeless families may come to their local IMC for placement in emergency shelter. The IMC will either place a family in emergency housing, or send the family to an Emergency Assistance Unit ("EAU") for referral to shelter. There is an EAU in each of the City's boroughs except Staten Island. EAUs provide services after 5:00 P.M. on weekdays and on weekends and holidays, when IMCs are closed.

 Plaintiffs Canaday, Roman, Panell, Rodriguez and Booker are homeless mothers who claim to have been denied "lawful emergency housing" by the defendants. *fn1" According to the complaint, they have had to wait, with their children, in EAUs until the early morning hours before emergency housing was provided to them, and are in danger of further denials of emergency shelter. Their complaint makes three requests of the Court. First, plaintiffs request that they be certified, pursuant to Fed.R.Civ.P. 23, as representatives of the class of all homeless families in New York City that have been, are being or will be denied emergency shelter by defendants. Second, they seek a declaration that defendants' failure to provide plaintiffs with "lawful emergency housing" violates federal and state constitutional, statutory and regulatory law. And they ask the Court to issue an injunction requiring defendants "to provide lawful emergency housing to meet the needs of plaintiffs."

 Plaintiffs have asserted in their complaint three claims to support the relief they seek. The first rests on the maze of federal and state statutes and regulations governing emergency aid to needy families with children. The second arises from the consent judgment agreed to by the City and State in Callahan, et al. v. Carey, et al., Index No. 42582/79 (Sup. Ct. N.Y. Co.) on August 26, 1981. By that judgment, defendants obligated themselves to provide emergency housing to homeless men. In Eldredge v. Koch, 118 Misc.2d 163, 459 N.Y.S.2d 960 (Sup.Ct. N.Y.Co.), rev'd on other grounds, 98 A.D.2d 675, 469 N.Y.S.2d 744 (1983) the court held that under the equal protection clause equivalent facilities must be made available to homeless women as well. Plaintiffs here contend that the equal protection clause mandates that emergency shelter be provided to homeless families on the same basis as it is provided to homeless single persons. Their third claim is based on Article XVII ยง 1 of the New York State Constitution *fn2" and numerous provisions of the New York Social Services Law. Each of these claims for relief is raised in McCain.

 With this general background, I turn to the history of this litigation and the parallel state litigation.

 McCain v. Koch was commenced in Supreme Court, New York County, by order to show cause, on March 31, 1983. Fourteen named homeless plaintiffs sued Koch, Perales, then-Commissioner of HRA Krauskopf, and numerous other governmental officials. They sought class certification and a preliminary injunction ordering a complete overhaul of the City's system for providing emergency shelter to homeless families. As part of the requested provisional relief, they sought an order "locating and making available additional emergency housing units within New York City so that all families with children in need of emergency housing can immediately obtain such housing in New York City." (Exhibit C to Opposition Affidavit of Antonia Levine). That relief - creation of additional emergency shelter capacity - is identical to the relief sought in this federal suit. The McCain complaint, however, is far broader in scope than this suit. The amended complaint dated May 1, 1983 raises claims going to: insufficient provision of shelter for homeless families; the type of facilities to be included in any shelter provided; the location and condition of such shelters; the system for informing homeless families of services available to them; the method for determining eligibility of homeless families for certain public assistance benefits; denial of those benefits to homeless families; and sundry other claims of procedural and substantive defaults by the City and State in providing emergency housing and certain other public assistance benefits to homeless families.

 In May, 1983, numerous persons attempted, by way of order to show cause accompanied by requests for preliminary injunctions, to intervene in McCain. Their claims also went to the adequacy of the City's system for providing emergency shelter.

 All sides submitted briefs on the preliminary injunction, class certification and intervention motions by June 8, 1983. Defendants opposed each motion. Their main argument was that as a matter of legal obligation, their duty to the needy goes no further than provision of cash grants. Actual provision of shelter, in their view, is a matter of grace. They opposed class certification and intervention on grounds, inter alia, that it was unnecessary since the requested relief - creation of sufficient additional shelter capacity to house all families in need of emergency shelter - would in any event benefit all conceivable intervenors and class members, without the unwieldiness of a class action. Plaintiffs argued that by including "securing family shelter" among the services to be provided, the state's aid plan explicitly requires provision by the City and State of emergency shelter to the homeless.

 Justice Greenfield issued his ruling on the motions on June 22, 1984. He denied certification of a class on grounds that "the numerous questions of fact and law [raised in the case] are not common to all members [of the class of homeless families]." He made final his June, 1983 interim order. His June 1984 order is not, however, without its ambiguities, particularly on the issue of whether defendants have a substantive duty to provide emergency shelter to all homeless families. He did reject plaintiffs' argument that the State Constitution and various State statutes explicitly mandate that shelter be provided. However, he also expressed unhappiness with defendants' position that state law imposed on them no obligation beyond provision of cash grants. It is clear, however, that the preliminary relief plaintiffs requested was denied. Thus, Justice Greenfield appears to have decided either that plaintiffs' arguments lacked merit, or at most, that if defendants are under any obligation at all under state law actually to provide shelter, that duty is not explicitly spelled out, but must somehow be inferred.

 Neither side was happy with Justice Greenfield's ruling; both have appealed to the First Department. Plaintiffs' appeal challenges the order to the extent it denied the requested preliminary injunction, class certification and intervention. Defendants have appealed his rulings directing compliance with certain minimum standards in any housing that was provided and mandating that certain procedural safeguards be followed. The appeals will be heard by the Appellate Division, First Department, in its September term.

 In May and July, 1984 more persons attempted to intervene in McCain. They sought class certification and requested that certain mass shelters in which families were placed be closed and their occupants placed in hotels and motels. On August 6, Justice Greenfield denied their motions. He refused to order the mass shelters closed, and denied class certification on grounds that "[r]elief sought by the class action is the same as requested by the preliminary injunction, the closing of mass shelters." The intervention motions were denied as well, with the comment. "[t]his court has repeatedly stressed that it is unable to determine individual factual situations." *fn3"

 Shortly before the instant litigation was commenced, one of the plaintiffs herein, Teresa Rodriguez, sought to invervene in McCain. She sought a temporary restraining order and preliminary injunction to prevent defendants from denying emergency shelter to homeless families, the same relief requested herein. On September 20, 1984 Justice Jawn Sandifer heard the TRO motion, Justice Greenfield having declined to hear it. Justice Sandifer denied the TRO, and the motion for a preliminary injunction was made returnable for September 25. On September 24, Rodriguez withdrew the motion, and that afternoon filed this suit in the Eastern District of New York with her co-plaintiffs.

 Plaintiffs commenced this action with an order to show cause for a preliminary injunction and class certification. When the case was filed, plaintiffs' counsel asserted that it was related to Koster v. Webb, No. 82 Civ. 2892, *fn4" which was then pending in the Eastern District before Judge I. Leo Glasser. Accordingly, under Local Rule 3, Canaday v. Koch was assigned to Judge Glasser.

 That evening, counsel for all parties appeared before Judge Glasser, who, after hearing argument, decided to permit defendants to proceed first, with alternative motions addressed to improper venue and abstention. He held plaintiffs' preliminary injunction and class certification motions in abeyance pending decision on defendants' motion, which was made returnable on October 3.

 On December 17, Judge Glasser granted defendants' motion to transfer venue to the Southern District of New York. Canaday v. Koch, No. 84 Civ. 3900 (E.D.N.Y. Dec. 17, 1984). He saw fit, however, to add a lengthy dictum on abstention. In commenting that "[h]ad I concluded that venue was properly laid in this district, I would nevertheless have stayed this proceeding pending the disposition of the state court action [in McCain ]," he noted the peculiar circumstances of the Canaday litigation. Plaintiffs admitted at oral argument that they were "not only forum shopping, they were judge shopping." Id., 598 F. Supp. at 1149. He noted the extensive, voluminous briefs and affidavits submitted in the McCain motions on legal entitlement to shelter, and observed that except for Justice Greenfield's order, which was being appealed, the New York courts had never directly ruled on the issue. Finally, he called into question his own thirteen-month-old ruling in Koster v. Webb, in which he had held that allegations similar to those made here state a cause of action: "This Court's construction of the New York statutes does not alter the fact that the issue is as yet undecided by New York courts." Id., 598 F. Supp. at 1151.

 This case was assigned to me after its transfer to this District. At my first conference with the attorneys on February 22, 1985, defendants indicated they would renew their motion to dismiss or stay this action on abstention grounds. I set a schedule for the submission of papers. Before the motion was fully submitted, however, numerous persons brought a motion by way of order to show cause seeking intervention as plaintiffs, class certification, and a preliminary injunction preventing defendants from denying emergency housing to homeless families. *fn5" They also requested that I issue a temporary restraining order provisionally granting their requested relief during the pendency of the motion. On April 17, the parties appeared before me and I denied plaintiffs' application for a TRO. In light of plaintiffs' urgent request for a preliminary injunction, however, I stated that the abstention motion would be decided forthwith, followed by prompt decision of the preliminary injunction motion. I set a tentative return date of May 6 for the preliminary injunction motion, to be effective if defendants' abstention motion was denied. ...

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