The opinion of the court was delivered by: ROBERT W. SWEET
Plaintiff has moved by order to show cause for an order preventing defendant Federal Home Loan Mortgage Corporation ("Freddie Mac") from evicting proposed intervening plaintiffs, the Franklins, and for an order that would, among other relief sought, compel defendants Freddie Mac and the City to abate the lead paint currently in the Franklin home. In addition the Franklins have moved to intervene in the class action that has been certified in this case. For the reasons set forth below, the intervention is granted, and the injunctive relief is denied in part and granted in part as modified.
The parties, facts and prior proceeding are fully described in earlier opinions of this Court, familiarity with which is assumed. See German v. Federal Home Loan Mortgage Corp., 1994 U.S. Dist. LEXIS 8716, 1994 WL 319154 (S.D.N.Y. June 28, 1994) (German I); German v. Federal Home Loan Mortgage Corp., 885 F. Supp. 537 (S.D.N.Y. 1995) (German II or the "May Opinion"); German v. Federal Home Loan Mortgage Corp., 896 F. Supp. 1385, 1995 U.S. Dist. LEXIS 12051, 1995 WL 498807 (S.D.N.Y. 1995) (German III). A review of those facts and prior proceedings relevant to this motion is presented below.
Proposed intervening plaintiff Cynthia Franklin ("Cynthia") was born on December 12, 1991, and has resided at 117 North Burgher Avenue, Staten Island, New York (the "North Burgher Avenue Building") since June 1992. She was diagnosed with an elevated blood lead level of 16 ug./dl on December 12, 1992. On March 24, 1994, her blood lead level was 35 ug./dl.
Proposed intervening plaintiff Sharia Franklin ("Sharia") was born on May 14, 1989, and has resided at the North Burgher Avenue building since June 1992. Sharia was diagnosed with an elevated blood lead levels of 18 ug/dl on September 22, 1992 and of 35 ug/dl on April 5, 1994.
Proposed intervening plaintiff Carol Franklin is the mother and natural guardian of plaintiffs Cynthia and Sharia. She has lived at the North Burgher Avenue building since June 1992 and brings this suit on behalf of herself and her above named children. Carol Franklin lives at Norther Burgher Avenue with her husband and six children, including the two intervening child-plaintiffs.
According to the Intervening Complaint, the North Burgher Avenue building is owned and operated by Freddie Mac. Freddie Mac has held the deed since February 15, 1995. According to the Intervening Complaint (the "Complaint"), Freddie Mac receives Federal Section 8 funds for the Franklins' dwellings. Caisi is the managing agent for Freddie Mac at this building. NYCHA administers the Section 8 funds to the property.
The City of New York is a defendant in the class action portion of this litigation in its role as a public housing authority ("PHA") administering federal funds.
This case was originally transferred to federal court from the State Court in New York on October 5, 1993.
Pursuant to a Summons with Notice and Verified Complaint dated July 26, 1993, the Germans instituted an action in Supreme Court, Bronx County, against PSC, CAISI, 1710, Freddie Mac, Deutsch, Wittenstein, and Wagman. The Complaint sought damages for personal injuries to the infant Germans and sought relief for Ana German in her individual capacity as mother and natural guardian of the infant plaintiffs.
Pursuant to 28 U.S.C. § 1446(b), Freddie Mac, as an entity created by federal legislation, removed this action to this Court on October 5, 1993.
Argument was heard on a motion to amend the Complaint on May 11, 1994. An opinion on that motion was issued on June 28, 1994, granting the plaintiffs' right to amend their complaint to include additional defendants and to supplement their claims. See German v. Federal Home Mortgage Corporation, 1994 U.S. Dist. LEXIS 8716, 1994 WL 319154 (S.D.N.Y.).
On August 17, 1994, this Court denied the Goffin plaintiffs' request for an order blocking the sale of the building, (Proceedings, Aug. 17, 1994, at 20), and on August 22, 1994 the Goffins filed an intervening complaint in this action which sought individual and class relief.
A Second Amended Complaint (the "Complaint") was filed on September 14, 1994 in which the plaintiffs sought class certification and an order requiring defendants to take steps necessary to protect young children living in their buildings or units to which defendants administered federal funds from lead poisoning.
On September 29, 1994 the Germans and the Goff ins filed a motion seeking class certification. Motions to dismiss and for partial summary judgment were also filed by all the defendants in September.
On May 8, 1995 an opinion was filed which granted in a modified form plaintiffs' motion to certify a class, granted defendants' motions to dismiss state claims based on theories of negligence per se, strict product liability, and liability for ultrahazardous substances. Defendants' motions to dismiss the other state causes of action were denied.
The plaintiffs requested certification for the following class and subclasses:
All persons residing on premises either owned, managed, or operated by any of the defendants or where they administer assistance payments under a federal housing program.
Sub-Class #1: Medical Monitoring
All persons age 8 years and under and all women of child-bearing age (12-50 years old) residing in buildings owned, managed, or operated by defendants or where they administer assistance payments under a federal housing program.
All persons age 8 years and under and all women of child-bearing age (12-50 years old) residing in buildings owned, managed, or operated by defendants or where they administer assistance payments under a federal housing program, and where there is lead-based paint in or on the dwelling or common area.
By opinion dated May 8, 1995, the court granted the class certification motion, in a somewhat modified form. Specifically, the Court held that:
In the final analysis, the class was certified as against the City as a PHA under the claims brought by the German plaintiffs and Freddie Mac as an owner and NYCHA as the PHA under the claims brought by the Goffin plaintiffs.
On August 22, 1995, the David family's motion to intervene was granted. German III at *4.
The motion to intervene the Franklin family as plaintiffs was filed on June 27, 1995, argument was heard on August 2 and the motion was considered fully submitted on August 4, 1995 when the last submission was filed with the Court. The motion for preliminary injunction was presented to the Court on August 2, 1995. The Court set the date of August 23 for a hearing on the motion. Argument was heard on the 23rd, and the motion was considered fully submitted at that time.
At the argument, the Court granted plaintiffs' request for a temporary restraint enjoining Freddie Mac from going forward with the eviction proceeding for 10 days. By letter dated August 25 from Freddie Mac to the Court, Freddie Mac represents that it is complying with that order. By letter dated August 30, Freddie Mac has agreed to relocate the Franklins temporarily and to correct and remove the lead paint conditions in the North Burgher Avenue apartment and to make the repairs required to address the lead paint violations cited by the Health Department as soon as possible. Plaintiffs submitted supplemental argument by letter dated September 1, 1995. The motion for preliminary injunction was considered fully submitted at that time.
When the Franklins moved to North Burgher Avenue in June 1992, the building was owned by the Nesbitts. The Franklins and the Nesbitts entered into a Section 8, "Landlord-Tenant Lease Agreement," on June 18, 1992. That lease was to be effective from July 1, 1992 until February 28, 1995. The lease contained a "Subordination to Mortgages" clause:
This lease shall be subject and subordinate at all times to the lien of existing mortgages and of mortgages which hereafter may ...