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ESCALERA v. NEW YORK HOUS. AUTH.

April 19, 1996

PEDRO ESCALERA and ROSE ESCALERA, on behalf of themselves and all other persons similarly situated, Plaintiffs, against NEW YORK HOUSING AUTHORITY, et al., Defendants.


The opinion of the court was delivered by: PRESKA

 LORETTA A. PRESKA, District Judge:

 Plaintiffs Pedro and Rose Escalera (the "Escaleras"), tenants in New York City public housing, filed a class action in 1967 under 28 U.S.C. §§ 2201, 2202 and 42 U.S.C. § 1983 against defendant New York City Housing Authority (the "Housing Authority") and certain of its officers. The Escaleras alleged violations of their rights secured by the Fourteenth Amendment Due Process Clause and the United States Housing Act of 1937, as amended, 42 U.S.C. §§ 1401 et seq. Prior to a trial on the merits, the parties entered into a stipulation of settlement which subsequently was incorporated into a decree (the "Escalera Decree").

 The Housing Authority has moved for an order clarifying or, under Rule 60(b)(5) of the Federal Rules of Civil Procedure, modifying the Escalera Decree to allow it to proceed under New York Real Property Actions and Proceedings Law ("RPAPL") Sections 711(5) and 715 (collectively, the "Bawdy House Law") in the context of apartments used to traffick narcotics. Following oral argument, a hearing (the "Hearing") was held over three days, at the conclusion of which I reserved decision. *fn1" Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, the following shall constitute findings of fact and conclusions of law in support of my decision in favor of the Housing Authority. *fn2"

 FINDINGS OF FACT

 Upon assessing the evidence in the record *fn3" and taking into account my observations of the demeanor and assessments of the credibility of those witnesses who testified at the Hearing, I find the following to be facts in this action.

 I. Parties

 1. The Housing Authority owns and operates, with the financial assistance of the United States, the State of New York, and the City of New York, low-rent public housing within the City of New York. (Complaint ("Compl.") at 3); N.Y. Pub. Hous. Law § 401. It is the largest such authority in the country. (Affidavit of Sally Hernandez-Pinero ("H-P Aff.") P 1.)

 2. Intervenor-plaintiff Interim Council of Presidents ("ICOP") is an organization comprised of the District Chairpersons of each of the eight public housing districts in the City of New York. (Affidavit of Frank S. Moseley ("Moseley Aff.") P 2.) ICOP serves in an advisory capacity to the Housing Authority regarding tenant issues. (Id. P 3.)

 3. Intervenor-plaintiffs Gerri Lamb, Cornelia Taylor, Dianne Jackson, Nicoletta Azure, Ronald Ward, and Keith Mitchell are Chairpersons of ICOP. (Id. P 4.)

 4. The Escaleras became tenants in Housing Authority public housing in 1957. (Compl. at 2.)

 II. Witnesses and Principal Affiants

 5. Joseph Keeney ("Keeney") currently is an Assistant Chief of Patrol of the New York Police Department ("NYPD"). (Testimony of Keeney, Transcript ("Keeney, Tr.") at 5.) Prior to this position, which began in 1995, Keeney was the Chief of Patrol of the Housing Authority Police and was responsible for the delivery of police services to all of the public housing developments in New York City. (Id.) He began his employment with the Housing Authority in 1961. (Id.)

 6. DeForrest Taylor ("Taylor") served with the Housing Authority Police from 1990 until 1994 as the Chief of Police. (Testimony of Taylor, Transcript ("Taylor, Tr.") at 94.) Prior to 1990, he was Chief of Personnel for the NYPD and held other positions within the NYPD dating back to 1956. (Id.)

 7. Mark Kleinman ("Kleinman") is an Associate Professor of Public Policy at the John F. Kennedy School of Government, Harvard University, and a specialist in the abuse of controlled substances. (Affidavit of Kleinman ("Kleinman Aff.") P 1.) Kleinman has examined the marketing and consumption of illegal drugs in many urban areas in the United States, has personal knowledge of the conditions inside Housing Authority projects, and frequently advises federal and local governments on drug policy. (Id. ; Testimony of Kleinman, Transcript ("Kleinman, Tr.") at 213.)

 8. Steven Belenko ("Belenko") is a Senior Research Fellow at the New York City Criminal Justice Agency, which provides pretrial services to New York City courts, such as interviewing arrestees, making recommendations at arraignments, and supervising release projects. (Declaration of Belenko ("Belenko Aff.") P 1.) Belenko is a research specialist in the areas of crack and criminal justice. (Id.)

 9. Alan D. Aviles ("Aviles") is the General Counsel of the Housing Authority, and, therefore, is responsible for the legal affairs of the Housing Authority and for the management and supervision of its Law Department. (Affirmation of Aviles ("Aviles Aff.") P 1.)

 10. As of August 1993, Sally Hernandez-Pinero was the Chairwoman of the Housing Authority. (H-P Aff. P 1.)

 III. Genesis of the Escalera Decree

 11. In 1957, when the Escaleras first became Housing Authority tenants, the Housing Authority required its tenants to sign month-to-month automatically renewable leases which either party could terminate by giving one month's notice to the other party. Escalera v. New York City Housing Auth., 425 F.2d 853, 857 (2d Cir.), cert. denied, 400 U.S. 853, 27 L. Ed. 2d 91, 91 S. Ct. 54 (1970).

 12. The Housing Authority also required its tenants to sign the Tenant Rules and Regulations upon the execution of their leases. Id. at 859. If the Housing Authority determined that a tenant violated these rules and regulations, id., or that a tenant was non-desirable, id. at 857, it could terminate the tenancy.

 13. The Housing Authority terminated the Escaleras' tenancy for violating the rules and regulations. Id. at 860.

 14. For several years, the Escaleras owned a dog. Id. at 859. In July 1967, the project manager warned them that keeping the dog violated Housing Authority rules. Although Mr. Escalera told the project manager that they sold the dog, the project manager demanded written proof. Id. at 860. On September 29, 1967, the Escaleras received a notice to vacate signed by the project manager informing them that their tenancy was terminated and that they should vacate their apartment by October 31, 1967. Id.

 15. The Housing Authority terminated the tenancies of the Rolles and the Humphreys, other class members, on the ground of non-desirability. Id. at 859.

 16. Due to alleged anti-social acts of the Rolles' son, such as statutory rape, and the arrest of Mr. Humphrey on a narcotics charge several miles from the housing project, the Housing Authority instituted termination proceedings against these families. Id.

 17. Both families requested hearings as provided by the Housing Authority procedures. Id.

 18. The Rolles, however, refused to go forward with their hearing after the Tenant Review Board Panel (the "Panel"), which consists of Housing Authority officers, denied their requests for procedural safeguards such as advance notice of the complete charge, a transcript of the hearing, confrontation and cross-examination of witnesses, and an impartial hearing examiner. Id. The Panel granted only the Rolles' request to examine their tenant folder, which contained the entire history of their tenancy and upon which the panel based its decision. Id.

 19. The Humphreys participated in their hearing and, although they were not allowed to inspect their tenant folder, the Panel found them to be non-desirable and gave them notice of termination. Id.

 20. On November 2, 1967, the Escaleras, on behalf of themselves and all others similarly situated, filed suit against the Housing Authority and certain of its officers, alleging that the Housing Authority's policies and practices for terminating tenancies violated their rights secured by the Fourteenth Amendment Due Process Clause and by the United States Housing Act, as amended, 42 U.S.C. §§ 1401 et seq. (Compl. at 1.)

 21. With respect to termination based on a violation of the rules and regulations, the Escaleras demanded a prior opportunity to contest the reasons for termination. Escalera, 425 F.2d at 860.

 22. With respect to termination based on non-desirability, the Escaleras demanded written notice prior to a hearing of all grounds to be relied on in the decision, notice of the rules governing the Tenant Review Board panel at the hearing, inspection of the tenant folder, exclusion of items about which advance notice was not given, confrontation and cross-examination of witnesses, exclusion of hearsay items, the right to compel attendance of witnesses, the keeping of a written record of the hearing, an impartial hearing examiner, a written decision with findings of facts and reasons, and access to prior decisions as precedent. Id. at 859.

 23. The Housing Authority moved under Rule 12(b) of the Federal Rules of Civil procedure to dismiss the complaint. Id. at 856.

 24. Although Judge Sylvester J. Ryan of this Court granted the motion, the Court of Appeals reversed and remanded the action for a trial on the merits. Id. at 857. The Court of Appeals held that "granting every favorable inference to plaintiffs' complaints and affidavits, it appears that the [Housing Authority's] procedures are deficient in several specific aspects." Id. at 867.

 25. The procedures for terminating tenancies on the ground of non-desirability potentially violated the Due Process Clause by: (1) failing "to give the tenant advance notice of all the items which might be considered against him so that he may challenge these items," (2) "denying tenants access to the material in their folders, when the entire folder is considered by the [Panel] in its determination of eligibility," (3) "denying the tenant the opportunity to confront and cross-examine persons who supplied information in the tenant's folder upon which the [Housing Authority's] action is grounded," and (4) failing "to disclose the rules and regulations in the [Panel's] Handbook governing the . . . Panel at the hearing concerning termination for non-desirability." Id. at 862-63.

 26. The procedures for terminating tenancies on the ground of violation of rules and regulations, according to the Court of Appeals, suffered "the first three deficiencies of the [Panel's] procedures" for terminating tenancies on the ground of non-desirability. Id. at 863. "The tenant should be notified in advance of the complete grounds for the proposed action; should have access to all the information upon which any decision will be based, and should be afforded the right to confront and cross-examine witnesses in appropriate circumstances." Id. "In addition, it would seem that the tenant should be afforded the opportunity to present his side of the case in the presence of an impartial official, not merely the project manager who instituted the proposed action against the tenant." Id.

 IV. Procedures of the Escalera Decree

 27. On March 24, 1971, prior to a trial on the merits of these constitutional claims, the Housing Authority and the Escaleras entered into the Escalera Decree. Judge Walter R. Mansfield of this Court ordered, adjudged, and decreed that the action was "settled according to the terms of the stipulation and exhibits annexed hereto and incorporated herein by reference, which . . . embody new procedures for termination of tenancies, which the Court hereby approves as in conformity with the requirements of due process of law as set forth in Escalera v. NYCHA, 425 F.2d 853 (2d Cir. 1970)." (Aviles Aff., Ex. A.)

 28. The procedures and notice of hearing made part of the Escalera Decree

 (Id.)

 29. The parties intended that they "provide more specific notice of the reasons for the proposed termination action," "disclose to the Tenant at a hearing the evidence upon which the [Housing] Authority relies and afford the Tenant an opportunity to cross-examine witnesses," and "advise the Tenant of the reasons (findings) for the decision to terminate the tenancy." (Id.)

 30. Further, the parties intended that the procedures act as "a general outline of the procedures to be followed in the immediate future in processing proposed termination cases. . . . They may be hereafter . . . modified," consistent with due process, "in light of experience, the volume of the case load involved, economic considerations, and the needs of the [Housing] Authority and its tenants." (Id.)

 31. The procedures provided by the Escalera Decree established four decision-making levels.

 32. First, the Project Manager (the "Manager") interviews the tenant to advise him or her of the facts which led the manager to conclude that a problem exists. (Id.) If all efforts to resolve the problem fail, including assisting the tenant in obtaining outside help, and the Manager decides that termination of tenancy should be pursued, the Manager submits the tenant's entire file and the manager's written recommendation, with reasons stated, to the Tenancy Administrator. (Id.)

 33. Second, the Tenancy Administrator reviews the recommendation to determine if, based on the facts and documentation which the Manager submitted, probable cause exists for eviction. (Id.) If probable cause exists, the Tenancy Administrator refers the entire file to the Housing Authority Legal Department for the preparation of charges and a notice to the tenant setting forth the specific grounds for the proposed termination action. (Id.)

 34. The notice, which includes a copy of the procedures established in the Escalera Decree, sets a hearing date at least fifteen days after the notice is dispatched, and requests the tenant to respond in writing at least five days prior to the hearing date to indicate whether he or she intends to attend the hearing. (Id.) Further, it informs the tenant that he or she may seek representation by counsel or anyone else of the tenant's choice, and that the hearing is important because it may result in the tenant's eviction. (Id.)

 35. Third, the Hearing Officer, who receives a copy of the notice, presides over the hearing. The Hearing Officer must be impartial and, prior to completing the hearing and a written decision, must not have had any access to the files, information, records, or recommendations upon which the proposed termination is based. (Id.) Further, the Hearing Officer must be "liberal in granting reasonable adjournments requested by the tenant . . . to assure . . . that the tenant is afforded every due process right." (Id.)

 36. At the hearing, the Housing Authority attorney who prepared the charges presents the Housing Authority's side of the case, and the tenant or his or her representative presents his or her side of the case. The parties may introduce oral and written evidence, cross-examine witnesses, and subpoena documents and witnesses, and the proceedings are recorded by a mechanical recording device. (Id.) Further, the rules of evidence are not enforced, and the tenant may make a statement in mitigation as to why the tenancy should not be terminated. (Id.) This statement relates to the tenant's family situation or other extenuating circumstances which tend to show why the tenancy should not be terminated. (Id.)

 37. The Hearing Officer then makes a written decision based solely on the oral and written evidence submitted at the hearing. (Id.)

 39. In any event, the Hearing Officer prepares a written report setting forth findings as to each charge. These findings also must include a summary of the evidence upon which they are based. (Id.)

 40. If the Hearing Officer finds any charge to be proven, he or she shall recommend a proper disposition of the case, such as eviction, social evaluation, probation, or a stay. This recommendation may take into account any extenuating circumstances presented at the hearing, the previous record of the tenant, and the tenant's prognosis for future conduct, as evidenced by the Housing Authority's files or other reliable sources. (Id.)

 41. The Hearing Officer forwards this report to the tenant or his or her representative, who has ten days to submit a written reply. (Id.)

 42. Fourth, the Hearing Officer's report and the tenant's reply, if any, are submitted to the members of the Housing Authority for their final review and determination of the action to be taken. (Id.) A written copy of this determination is provided to the tenant or his or her representative. (Id.)

 43. Once the Housing Authority decides to terminate the tenancy, it must serve a notice to vacate the premises by a specified date. (Aviles Aff. P 15.)

 44. In drug-related tenancy terminations which require a full hearing by the Housing Authority, these procedures typically require eight months. (Id. PP 12, 13.)

 45. Some of this eight-month period is the result of adjournments and other scheduling demands. (Declaration of Judith Goldiner ("Goldiner Aff.") PP 9, 10.)

 V. Post-Administrative Judicial Proceedings

 46. If the tenant fails to vacate after the specified date, the Housing Authority must commence a summary holdover proceeding in the Housing Part of the New York City Civil Court ("holdover proceeding") to obtain a warrant of eviction. (Aviles Aff. P 5.)

 47. Holdover proceedings require an additional two to four months to complete. (Id. P 16.)

 48. The tenant, however, may further delay eviction by challenging the Housing Authority's administrative determination of eviction in a proceeding in New York State Supreme Court under Article 78 of the New York Civil Practice Law and Rules ("Article 78 proceeding"). (Id. P 15.)

 49. Upon filing an Article 78 proceeding, the tenant may move to stay the holdover proceeding. See N.Y. Civ. Prac. L. & R. § 7805 ("On the motion of any party or on its own initiative, the court may stay . . . the enforcement of any determination under review. . . . .".

 VI. The Bawdy House Law

 50. RPAPL Sections 711(5) and 715 are contained in Article 7, entitled "Summary Proceeding to Recover Possession of Real Property."

 51. According to Section 711(5), entitled "Grounds where landlord-tenant relationship exists,"

 
a special proceeding may be maintained under this article upon the following grounds: . . . (5) the premises, or any part thereof, are used or occupied as a bawdy-house, or house or place of assignation for lewd persons, or for purposes of prostitution, or for any illegal trade or manufacture, or other illegal business.

 RPAPL § 711(5).

 52. According to Section 715, entitled "Grounds and procedure where use or occupancy is illegal,"

 Id. § 715(1).

 53. In 1988, the New York County District Attorney began relying regularly on the Bawdy House Law to seek summary evictions of tenants, including Housing Authority tenants, for drug-related reasons. (Aviles Aff. P 24.) Thereafter, other District Attorneys in New York City also began to bring such proceedings under the Bawdy House Law. (Id.)

 54. The Narcotics Part of the New York City Civil Court presides over Bawdy House Law drug-eviction cases. (Id. P 20.)

 55. The typical length of a contested Bawdy House Law proceeding is two to three months. (Id. P 21.)

 56. Because a Bawdy House Law proceeding concludes with a warrant of eviction (assuming the petitioner is successful), the petitioner is not required to initiate a holdover ...


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