New York Law Journal: Expert Opinion – Realty Law Digest

By Scott E. Mollen, a partner at Herrick, Feinstein, discusses “Downtown New Yorkers Inc. v. NYC,” where a petition to block New York City from Relocating homeless people from the Lucerne Hotel to the Radisson Hotel was dismissed, and “Ellis v. Town of E. Hampton,” where adverse possession against government-owned land was denied.

February 16, 2021


Land Use—Petition To Block N.Y.C. from Relocating Homeless People From Lucerne Hotel to Radisson Hotel Dismissed—Court Lacked Subject Matter Jurisdiction—Plan To Provide Single Bed Hotel Rooms Rather Than Double Rooms “Provides a Rational Basis for the relocation plan”—Although Petitioners Suspect That Radisson Hotel Will Be Converted to Permanent Shelter, That Was Speculation and if City Sought To Make the Hotel a Permanent Shelter, Petitioners Could Challenge Such Plan—Appellate Division Issued a Stay of Forced Relocation But Permitted Voluntary Relocation

Petitioners commenced an Article 78 proceeding to restrain respondents City of New York, the Mayor, the NYC Dep’t of Homeless Services and the Commissioner of the NYC Dep’t of Homeless Services (city) from “relocating such petitioners and other persons currently residing at the Lucerne Hotel (Lucerne) to the Radisson Hotel (Radisson).” The court denied the petition on the grounds that it lacked “jurisdiction over the subject matter” of the petition and vacated a prior temporary restraining order (TRO).


The court also denied the petition for a preliminary and a permanent injunction restraining the city from “opening the Radisson Hotel Shelter” (Radisson Shelter) as a temporary homeless shelter on the grounds that the petitioners lacked standing to challenge “the relocation of residents from the Lucerne…to the Radisson….” Thus, the Art. 78 proceeding was dismissed.


The petitioner Downtown New Yorkers, Inc. (DNYI) is a non-profit organization comprised of “New Yorkers who reside, work and own property in New York City’s Financial District (FiDi), which is near the Radisson…Shelter, and is ‘committed to community enhancement and preservation.’” Individual petitioners are residents and homeowners who live, with their families in FiDi, a “couple of blocks to about one-half mile away from the Radisson….”


The petitioners sought an order that would “declare unlawful and annul the plan of the city…to open the Radisson…Shelter as a temporary homeless shelter, and move approximately 235 men currently residing at the Lucerne…to the ‘proposed’ Radisson…(relocation plan) and…to restrain the city…from implementing that relocation plan.”


The petitioners contended that the relocation plan was unlawful because the city lacked a “registered written contract for use of the Radisson…as a temporary shelter; because the emergency contract between respondent City Dep’t of Homeless Services (DHS) and the Hotel Association of New York (HANYC) for use of hotels as temporary shelters expired on October 12, 2020; the relocation plan is ultra vires the authority of the Mayor’s Executive Order (EO) 101 of March 17, 2020, which exempted city agencies from ‘following the laws and regulations related to procurement of goods, services or construction when an agency head determines in writing that the procurement is necessary to respond to the emergency’ threat posed by COVID-19 to the health and welfare of city residents; and the relocation plan is arbitrary and capricious and its de-dedensification rationale (is) a pretext for the real motive, which is (the) mayor’s irrational accession to the demands of a small group of ‘dissidents’ who live in the Upper West Side (UWS) community and oppose the use of the Lucerne…as a temporary shelter.”


Petitioners noted the number of adult homeless men, including a “‘majority of whom suffer from mental illness and substance abuse problems’, loitering and fighting among themselves in the FiDi neighborhood since their relocation to the Hilton Hotel, an existing temporary shelter in FiDi, and the failure of Project Renewal, which runs the Hilton Shelter, to enforce a curfew.” They also cited “severe problems that initially existed at the Lucerne with the relocation of 235 single adult men, arising from the lack of planning on the part of the city …, which problems would be replicated in FiDi with the move of the men to the Radisson.”


Petitioners asserted that the city failed to timely notify the FiDi community of the city’s plan to use the Lucerne as a shelter and that it would not be in the best interest of the men, the FiDi community or the city to “move the men once again, disrupting their progress.”

A “licensed clinical social worker and a board certified internist/addiction medicine physician,” had “attested to the complex trauma that the men have experienced over their lifetimes, the rejection they had suffered by a ‘vocal and privileged minority in the surrounding community’ when they first arrived at the Lucerne, and how as a result of the work of Project Renewal and many concerned community members,…such challenges were overcome, and programs put in place to support the health and safety of the Lucerne residents.”


They cited “the risk of residents suffering ‘decompensation’ and ‘relapse’” if they were forced to relocate because they are “unwanted by a minority of their current UWS neighbors, rather than for a legitimate public health concern, to the Radisson, where some FiDi neighbors, the original petitioners herein, likewise object to their presence.”


The intervening petitioners emphasized the many services that they were now receiving at the Lucerne. Additionally, numerous public officials urged the city to cancel the relocation plan.


There was “no dispute that prior to the current relocation plan, the Radisson…has been used as an ‘isolation hotel’, i.e. a place where homeless persons infected with the Covid-19 virus have been quarantined.”


The court had granted an intervention request by a Lucerne resident, who alleged that he had an interest in the outcome of the lawsuit, since he supported the relocation plan. He stated that it would “enable him to have a single hotel room at the Radisson, rather than share a room as he is currently at the Lucerne, and to be closer to the 3rd Street medical center.”


However, the court was “hard pressed to understand how proposed intervening respondent West Side Community Organization and individual residents who are neighbors of the Lucerne have any interest in the outcome of this proceeding, as for the last few months the Lucerne has been populated by 235 homeless men whose presence on UWS is the harm of which they complain, but which harm is not the subject of the proceeding at bar.”


The city submitted EO-100; EO-98, which declared a local state of emergency due to COVID-19; an emergency declaration for quarantine and isolation sites for NYC Dep’t of Homeless Services shelter clients; Project Renewal contract to “perform services and operate a shelter located at 8 East 3rd Street, New York, New York” and other supporting documents. The Project Renewal contract included several riders which required the contractor to submit a continuity of operations plan (COOP) which would address, inter-alia, the provision of essential services, essential staff, development of protocols for safekeeping of business records and a transportation contingency plan for its employees.


The city provided information as to the number of rooms, number of usable beds, number of floors, availability of microwaves and refrigerators, number of office spaces for DHS and meeting spaces. Further, the city had cited an extension agreement which “refutes petitioners’ claim that current contracts are non-existent.”


The court noted that the relocation plan “will enable each of the residents to move from a Lucerne…room with two beds and a roommate into a single bed hotel room at the Radisson.” The court found that the “de-densification of residents who are currently doubled up at the Lucerne, provides a rational basis for the relocation plan.”


The petitioners argued that the subject contracts “exceed the authority granted under the various EOs and emergency declarations.” The court found that such argument had “some merit, as a strict reading of those edicts refers solely to ‘symptomatic and asymptomatic COVID-19 shelter clients.’”


The court reasoned that even if it accepted the “strict reading urged by petitioners,…petitioners have no standing entitling them to such relief.” The petitioners had to show that they “suffered an injury in fact, distinct from the general public.” “Alternatively, petitioners, as taxpayers, would have to argue that the city… acted outside (its) authority in issuing a contract at all.”


The court believed that the petitioners had “no quarrel with the city, in lieu of awarding a no bid contract to the Radisson, renewing its no bid contract with the Lucerne as a relocation site, and removing the relocation site, intended use provision from the Radisson user agreement.” Therefore, “as taxpayers,” who did not allege that the city lacked authority to “let the contracts at all,” and had not alleged “any distinctive injury arising from the purported ultra vires letting of the Radisson User Agreement,” the petitioners lacked “standing to challenge the User Agreement with the Radisson.”


Although there was some “speculation that the Radisson…is being situated to ultimately become a permanent shelter, without a doubt, the user contract for the Radisson, which is for a fixed eight month term, provides for the use of the hotel as a temporary relocation site only.” The court noted that petitioners will “certainly have the right to challenge any plan to convert the Radisson…into a permanent shelter for the homeless should the city propose such plan.”


The court cited judicial precedent for the principle that plaintiffs need not exhaust their administrative remedies to “compel the city to develop protocols and develop services that would avert and shorten foster care placement in face of the 90 day emergency shelter limit would be futile and provide no meaningful relief to such families, who would be irreparably harmed by the separation from their children and the resulting disintegration of the family unit.”


The subject court found that the intervening residents of the Lucerne have a “real and substantial interest in the outcome of this proceeding, i.e. a determination where they will live.” However, the court found “at this juncture, none of the intervening resident parties are entitled to any relief under the law.”


The court explained that unlike federal and state regulatory “minimum habitability standards” at issue in a prior case, the “intervening resident parties do not cite to any particular services or habitability requirements, whether national, state or local, that the…city has breached with the implementation or failure to implement the relocation plan.”


Thus, the intervening resident parties “cannot show that relegating them to a fair hearing after their shelter assignment, should the city fail to provide some required services, would be an exercise in futility, or that they will suffer any irreparable harm as a result of such shelter assignment.”


The court further stated that the “intervening resident parties’ preference for a particular placement is not analogous to the federal statutorily and regulatory” “minimum habitability standards” to which the plaintiffs in (a prior case) were held to be entitled. Moreover, several community organizations and service providers, as well as city agencies “will supplement the work of Project Renewal” and Project Renewal “has pledged to replicate the successful Lucerne programs for the residents who move to the Radisson…temporary shelter.”


Finally, the court noted that although intervening petitioners and their UWS “supporters are unhappy with the prospect that the wheel will not be fully reinvented by the FiDi community, they may take some reassurance and satisfaction with the template that they have forged.”


Comment: The petitioners appealed from the dismissal of their Article 78 petition, the denial of their motion for preliminary injunction and the vacating of the TRO. Intervenors had moved for a stay of enforcement of the aforementioned order and for an injunction enjoining the relocation of certain homeless men from the Lucerne Shelter to the Radisson Shelter, pending a hearing and determination of the appeal. The petitioners had moved for a stay of enforcement of the trial order and to enjoin the city from using the Radisson as a “routine temporary housing for certain single adult homeless men who are not directly impacted by COVID-19, or transferring certain adult homeless men from the Lucerne…Shelter to the Radisson…Shelter, pending a hearing and determination of the appeal.”


The Appellate Division granted the intervenors’ motion to the extent “that the forced relocation of certain homeless residents from the Lucerne…to the Radisson…was stayed, pending the hearing and determination of the appeal, on condition that the appeal is perfected for the May 2021 term.” The Appellate Division permitted the city to relocate those residents who voluntarily choose to be moved. Otherwise, the Petitioners’ motion was denied.


Downtown New Yorkers Inc. v. NYC, Supreme Court, New York Co., Case No. 158550/2020, decided Nov. 24, 2020, James, J.


Adverse Possession Against Government Owned Land Denied—Land Was Held for Public Purposes—Plaintiff Also Did Not Show That “Use of the Strip Was Open, Notorious or Hostile”


A plaintiff commenced an action against a town pursuant to Real Property Actions and Proceedings Law (RPAPL) Art. 15 for a “determination of ownership of certain property.” The complaint alleged that from 1976 until the present, “the only route used for ingress to and egress from” the plaintiff’s property “has been a 200-foot driveway (property) that crosses a 100-foot-wide and 300-foot-long vacant, heavily vegetated wetland adjacent to the plaintiff’s property; that plaintiff and his family have used this driveway daily for many years; that such use has been hostile, actual, open and notorious and exclusive and is continuing; and that defendants never interfered with plaintiff’s use of this strip of land—which he characterizes as a ‘paper road’—until 2010,” when the town sent a letter demanding removal of the driveway.


The complaint further alleged that only during a brief period in the mid-1980s, did the town assert an interest in the property by attempting to “dump fill and to install a metal drainage pipe.” However, the town was stopped from doing so by the NYS Dep’t of Environmental Conservation.


The plaintiff had moved for summary judgment “quieting title” and determining that the plaintiff adversely possessed the property since 1976. The plaintiff submitted aerial photographs, his own affidavit and a transcript of his deposition testimony and transcripts of the depositions of the town supervisor, town engineer, and town assessor. The town moved for summary judgment, declaring that the town is the “sole owner of the disputed strip of land,” which they assert is a “publicly dedicated road that provides public access to the beach and shore of Lake Montauk, a navigable body of water, and in which strip of land plaintiff has, and can have, no ownership or prescriptive easement interest.” The defendants argued that the property is “government land held for a public purpose, title to which, as a matter of well-settled law, cannot be acquired by adverse possession and that, in any event, plaintiff has not actually ‘occupied’ the road.” The town submitted several documents to establish its ownership of the property.


The plaintiff asserted that in 1976, his father “cleared a 200-foot long driveway that ‘completely transects a paper road.’” He claimed that the driveway has been “utilized for ingress and egress to the family’s property since that time.” He further argued that the family’s use of the driveway has been “open, adverse, hostile and continuous.” Additionally, he explained that since 1996, his family made significant improvements to the property by “trimming the vegetation and hedges that the family has planted over the years.” He also stated that the family used the property “to store massive amounts of firewood, construction equipment, a boat, boat trailer, log splitter and utility trailer.” He further alleged that he maintained the property, which crosses his driveway, by “resurfacing and regrading the ‘locus of his driveway to prevent flooding in his basement and parking area.’”


The court rejected the plaintiff’s claim because “[a]lthough adverse possession may be established against a municipality where the real property at issue is owned by it in a purely proprietary capacity…, government land held for public purposes, including roadway use, cannot be adversely possessed….” The record demonstrated that the roadway had been used for access to Lake Montauk “notwithstanding what defendants characterized as plaintiff’s efforts to discourage public access to the beachfront.” The court stated that “even if the strip of land at issue could somehow be deemed to be held by the town for other than a public purpose, plaintiff’s claim of ownership by adverse possession would still fail.”


RPAPL §522, as amended in 2008, provides that after July 7, 2008, “a party without a claim of title based upon a written instrument asserting a claim to title to land based on adverse possession must establish either that the land at issue has been ‘protected by a substantial enclosure’ or that ‘there had been acts sufficiently open to put a reasonably diligent owner on notice.’”


Moreover, RPAPL §501, as amended in 2008, “defines the common element of ‘claim of right’ as meaning ‘a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the case might be.” RPAPL §543, provides that the presence of “de minimis non-structural encroachments, ‘like fences, shrubs and sheds, is now deemed permissive, as are certain acts of routine maintenance and cultivation, like mowing the lawn.” Furthermore, the RPAPL, as amended, cannot be applied retroactively “to deprive a claimant of a property right that vested prior to the effective date of the 2008 legislation….”


The court found that the plaintiff could not show that his use of the property was open and notorious. He could not show that he was unaware of the town’s ownership of the land or that his or his family’s use for access or egress was “hostile.” The court stated that the “mere planting and trimming of vegetation and the storage of assorted things on it, or the claimed regrading or paving of a transected portion of it, are insufficient to constitute its adverse possession….”


Thus, even if the property were owned by the town in a “proprietary capacity,” which is not the case here, the plaintiff could not establish ownership by adverse possession. Accordingly, the court denied the plaintiff’s motion for summary judgment and granted the defendants’ cross-motion for summary judgment, declaring the town’s ownership of the property and dismissing the claims against the town.


Ellis v. Town of E. Hampton, Supreme Court, Suffolk Co., Case No. 39528/2010, decided Dec. 21, 2020, Berland, J.