Scott E. Mollen

Land Use—Case Law Is Sparse on Issue of Who Has Standing To Enforce Provisions of the "Open Meetings Laws"—"The Harm or Injury of Being Excluded from Municipal Meetings That Should Be Open to the Public Is Sufficient To Establish Standing"—a Petitioner/Plaintiff Need Not Demonstrate "An Additional Personal Damage Injury"

The petitioners/plaintiffs (appellants) are members of the public and residents of a village. They had commenced a hybrid proceeding pursuant to CPLR Art. 78 and an action for declaratory relief against a village Board of Trustees (board). The appellants alleged that the board violated the Open Meetings Law at certain meetings, "by failing to provide proper notice of the meeting, improperly entering into a closed 'executive session' and failing to accurately record the minutes of the meeting." They claimed that the board had "improperly excluded them from portions of certain meetings that should have been open to the public."

The board had moved to dismiss the petition/complaint for lack of standing. The trial court granted the village's motion. The trial court held that standing to assert a violation of the Open Meetings Law "required a petitioner/plaintiff to demonstrate 'some personal damage or injury' to his or her civil, personal, or property rights as a direct or indirect consequence of the challenged action." The trial court held that merely "being a member of the general public, a taxpayer, or resident of the municipality, in and of itself, is insufficient to confer standing to raise an alleged Open Meetings Law violation." The Appellate Division (court) reversed.

The court explained that "[i]n enacting the Open Meetings Law, the Legislature sought to ensure that 'public business be performed in an open and public manner and that the citizens of this state be fully aware of and be able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy…." Decisional precedent held that the Open Meetings Law is to be given "broad and liberal construction so as to achieve the purpose for which it was enacted…."

The Open Meetings Law provides generally that "every meeting of a public body shall be open to the general public, 'except for executive sessions that may be called for specified reasons…. Moreover, public notice of the time and place of a meeting schedule shall be given, minutes shall be taken at all open meetings of a public body, and the minutes shall be made available to the public…." The statute provides that an "aggrieved person shall have standing to enforce the provisions of this article against a public body by the commencement of a proceeding pursuant to article seventy-eight of the [CPLR], or an action for declaratory judgment and injunctive relief…." Thus, the salient issue was whether the appellants are "aggrieved persons with standing to enforce the provisions of the Open Meetings Law."

The court noted that generally, "if the issue of standing is raised, a party challenging a governmental action must meet the threshold burden of establishing that it has suffered 'an injury in fact' and that the injury it asserts 'falls within the zone of interests or concerns sought to be promoted or protected by the statuary provisions under which the government has acted…." Further, the "injury in fact requirement necessitates a showing that the party has 'an actual legal stake in the matter being adjudicated' and has suffered a cognizable harm … that is not 'tenuous,' 'ephemeral,' or 'conjectural,' but is sufficiently concrete and particularized to warrant judicial intervention…."

The court observed that "[c]ase law on the issue of who has standing to commence a proceeding/action to enforce the provisions of the Open Meetings Law is sparse."

After reviewing decisional precedent and guided by the principle that "when presented with a question of statutory interpretation, a court's primary consideration is to ascertain and give effect to the intention of the Legislature," the court rejected the trial court's determination that the appellants lacked standing to commence the subject proceeding/action. The court emphasized that the purpose of the Open Meetings Law and "the intent of the Legislature in enacting the law dictate that the harm or injury is the alleged unlawful exclusion of the public from a municipal meeting." It found that the Open Meetings Law "plainly confers upon the public the right to attend certain meetings of public bodies…." Therefore, the "harm or injury of being excluded from municipal meetings that should be open to the public is sufficient to establish standing in cases based upon alleged violations of the Open Meetings Law…."

Additionally, the court noted that if the trial court's position were affirmed, "a petitioner/plaintiff would have to demonstrate an additional personal damage or injury to his or her civil, personal, or property rights in order to assert a violation of the Open Meetings Law." The court reasoned that such requirement would "interject a counterintuitive restriction upon the general citizenry's access and participatory freedoms to attend certain meetings of a public body. Such a requirement or condition would undermine, erode, and emasculate the stated objective of this statute, which was designed to benefit the citizens of this state and the general commonweal, assure the public's process right to be informed, and prevent secrecy by governmental bodies."

Accordingly, the court reversed and held that the board's motion to dismiss for lack of standing should have been denied and it reinstated the petition/complaint. However, the court took no position on the merits of the remaining allegations, including whether the board had in fact violated the Open Meetings Law by excluding the appellants or whether the board had "properly conducted executive sessions."

Matter of McCrory v. Vill. Of Mamaroneck Bd. Of Trs., Appellate Division, 2nd Dept., Case No. 2017-12066, decided Feb. 5, 2020, Rivera, J.P., Dillon, Austin, Hinds-Radix, JJ. concur.

Landlord-Tenant—Tenant Asserted Failure To Provide Reasonable Accommodation Defense In Housing Court—Housing Court Struck Such Defense, but No Judgment Entered Against Tenant—No Judgment in Housing Court Implicated the Rooker-Feldman Doctrine and Federal Court Could Proceed To Hear Claims, Including Claims Under the Fair Housing Act and Americans With Disabilities Act

A plaintiff subtenant (tenant) commenced an action against a defendant housing program (Program). The plaintiff alleged that the Program discriminated against her "on the basis of her disability, in violation of the Fair Housing Act, the Americans with Disabilities Act, the (NYS) Human Rights Law, and the (NYC) Human Rights Law, regulations of the (NYS) Office of Mental Health, and contracts between (the Program) and various city agencies." The plaintiff sought declaratory and injunctive relief, as well as damages, attorneys' fees and costs. The Program moved to dismiss for lack of subject matter jurisdiction. The United States District Court (court) denied the motion to dismiss and held that it had subject matter jurisdiction over the tenant's claims.

The tenant is a "mentally and physically disabled resident of a housing facility" that is part of the Program. The Program serves "adults who have been diagnosed with serious mental illness" and leases apartments from landlords and subsequently subleases those apartments to individuals who became part of its program.

The Program had commenced a summary eviction proceeding for nonpayment of rent against the tenant in the Bronx Housing Court. The tenant had moved to dismiss for failure to plead the correct regulatory status of the premises and failure to follow NYS Office of Mental Health Rules and Regulations. Alternatively, the tenant sought leave to interpose an amended answer and to conduct discovery.

The Housing Court denied the tenant's motion to dismiss the proceeding, denied discovery and granted the tenant's motion to amend the answer but struck "several of her defenses including her defense based on her request for reasonable accommodation for her disability, based on the Housing Court's determination that it did not have jurisdiction consider such a defense."

The tenant thereafter moved to reargue that part of her motion which sought to amend her answer and asked the court to reconsider its decision striking her reasonable accommodation defense. The Housing Court denied the tenant's motion to reargue. No judgment had been entered against the tenant.

The tenant had asked the Program for "reasonable accommodations." She requested that the Program discontinue its "petition for nonpayment" with prejudice, the Program assist her with "a rental assistance grant application to address rental arrears" and that the Program repair conditions in her apartment. The tenant had filed a Housing Court case seeking the repairs in her apartment. Shortly thereafter, the tenant had commenced the subject federal court case, alleging that the Program "unlawfully discriminated against her on the basis of disability and deprived her of an equal opportunity to use and enjoy her housing accommodations in violation of the aforementioned federal, state and local statutes."

The court explained that it had subject matter jurisdiction "pursuant to 28 U.S.C. §1331 for civil actions arising under the laws of the United States; 28 U.S.C. §1343 for actions arising under the laws providing for the protection of civil rights; and 42 U.S.C. §12133 as an action pursuant to the Americans with Disabilities Act of 1990."

The court also had "supplemental jurisdiction" over the tenant's state law claims pursuant to 28 U.S.C. §1367 because the tenant's "federal and state law claims are related and arise out of a common nucleus of related facts." The court noted that federal courts are courts of "limited jurisdiction," and absent a "constitutional or statutory basis of jurisdiction, a federal district court lacks subject matter jurisdiction and may not preside over a case."

The Program argued that the "Rooker-Feldman doctrine" bars review of the tenant's claims. The Rooker-Feldman doctrine holds that federal courts "lacks subject matter jurisdiction over actions that are, in substance, simply appeals from state court judgments." This doctrine "bars challenges in federal court to the substance of state-court decisions which are more properly raised on appeal, even where such challenges appear to raise questions of federal law on their face."

The court observed that recently, the U.S. Supreme Court "strictly 'confined' the Rooker-Feldman doctrine 'to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.'" The Rooker-Feldman doctrine will bar a court from hearing a case where "(1) the party raising the claim must have lost in state court; (2) that party's injuries must be caused by the state court judgment; (3) the party's claims must invite the district court to review and reject the state court judgment; and (4) the state court judgment must have been rendered prior to the commencement of the federal court proceedings."

Here, the first requirement which implicates the Rooker-Feldman doctrine had not been met, i.e., the tenant must have lost in the state court. The Housing Court held that it lacked jurisdiction to adjudicate the plaintiff's discrimination claims under the Fair Housing Act and the American with Disabilities Act; it never entered a judgment against the plaintiff on the issue." Rather, the Housing Court had "simply declined to dismiss the case and refused to allow plaintiff to amend her answer to include these issues as affirmative defenses."

The court further noted that the "Civil Court Act and Article 7 of the Real Property Actions and Proceedings Law provide the housing court with limited jurisdiction in summary proceedings, that is: actions for the recovery of possession of real property under various circumstances, and actions for the collection of rent."

The court reasoned that "[r]equiring the housing court to hear any manner of claim merely because they arise, however tangentially, out of the same facts as an Article 7 proceeding would return the housing court into a court of general jurisdiction."

Here, the tenant alleged an injury, "discrimination based on disability." That claim "arises under federal law, and that could not have been adjudicated in the Housing Court proceeding." Since there is no judgment in the Housing Court case "that would implicate the Rooker-Feldman doctrine," the court denied the Program's motion to dismiss for lack of subject matter jurisdiction.

Jones v. The Ass'n for Rehabilitative Case Mgmt. & Supported Housing Program Inc., U.S. District Court, S.D.N.Y., Case No. 1:19-cv-10114, decided Jan. 30, 2020, McMahon, J.

Landlord-Tenant—Rent Stabilization—Succession—Granddaughter Entitled To Succeed to Apartment Notwithstanding Lack of Certain Documentation—Decision Based on "Totality of Credible Evidence"—There May Have Been More Informal Record-Keeping Practices in 1950's Jamaica Than in New York State Today—Not Uncommon for Multi-Part Names To Vary Slightly Across Different Documents.

A landlord commenced a licensee holdover proceeding against the occupant granddaughter of the tenant of record. The landlord asserted that the granddaughter's "license to occupy the premises terminated on the death of the tenant of record (tenant)." The granddaughter asserted that she was entitled to succeed to her grandmother's apartment. She also raised a warranty of habitability defense.

The grandmother had died on Sept. 7, 2017. The granddaughter supported her succession claim with her own testimony and that of her father. They testified that the tenant of record was the granddaughter's grandmother. The granddaughter introduced copies of her father's birth registration form from Jamaica, W.I., showing that the father had been born in 1956 and was the male child of "Consie" Smiley and a "certified birth registration slip" reflecting that the father was born to "Consey" Smiley.

The father testified that his mother, "Conciana" Smiley-Wood, had answered to the names "Conciana," "Consie," and "Consey." The granddaughter also introduced a "deed poll" issued in Jamaica, W.I., reflecting her father's name change from "Devon Kirkpatrick Benjamin" to "Devon Kirkpatrick Dunbar." The father explained that his permanent resident card contained a name "Devon Dunbar."

The granddaughter testified that she began living with her grandmother in August 2015. Prior thereto, she had lived in Connecticut for about eight months. She explained that she had intended to return to New York, needed a place to live, and "her then 84 year-old grandmother asked (her) to stay with her, because she suffered with health issues, including hypertension and diabetes, and had been falling a lot in the apartment." Initially, the granddaughter only brought some clothing and an air mattress to the grandmother's apartment. Thereafter, she brought her furniture and additional items.

The granddaughter further testified that the grandmother needed help with "household cleaning, cooking, errands, and personal care, which respondent provided for the tenant." She also submitted her NYS driver's license, issued on March 16, 2016 and income tax records for the year 2017, both listing the subject premises as the granddaughter's address. The granddaughter testified that she lacked utility bills for the apartment in her name, since all utility bills remained in the grandmother's name until after her death.

The granddaughter's father testified that he would visit his mother, almost daily and had observed the granddaughter helping the grandmother with personal care tasks. The landlord presented no rebuttal witness.

Rent Stabilization Code § 2523.5 (b)(1) "requires an occupant to show that the tenant of record permanently vacated the subject premises, and that the occupant co-resided with the tenant of record, who must meet the definition of family member pursuant to RSC § 2520.6(o), for two years prior to the date of vacatur (except where the potential successor is disabled or a senior citizen, in which case, a one year period of co-residency is required)."

The Rent Stabilization Code provides "a number of factors which may be considered in determining whether an apartment functions as a person's primary residence, and no single factor is determinative." The court explained that the "absence of documentary evidence does not invalidate a succession claim where 'the totality of the testimonial evidence supports such claim.'"

The court found that based on the totality of the evidence, the granddaughter had sustained her burden of proof, with respect to her succession claim. The landlord had "attacked the sufficiency of respondent's proof, particularly proof of family relationship with the tenant of record." The landlord cited the different names on the father's birth registration form and on the grandmother's documents.

The court expressed its awareness that "there may well have been a somewhat more informal record keeping practices in 1950's Jamaica, W.I., than New York State today and the fact that it is not uncommon for multi-part names to vary slightly across documents." Moreover, given this rather uncommon name, the court noted that it is more probable than not that the "Consie/Consey Smiley listed as Mr. Dunbar's mother on his birth records is the same person as Conciana Smiley-Wood, the decedent tenant of the subject premises." The landlord had not questioned the father-daughter relationship.

The landlord had also challenged the validity of the father's name change document of the father. However, the court found no basis to question the validity of the father's document, which had also been used by the father to "successfully petition the federal government for permanent residency in the United States."

The court then found that the granddaughter had credibly testified that she moved in with her grandmother in August 2015, and that she has continuously resided at the subject premises since. The father had also credibly testified as to the co-residency. The court also noted that the granddaughter had supported her claim with "documentary evidence," including a driver's license and tax returns. Although the granddaughter lacked documents "connecting her to the subject premises for the period of September 2015 through March 2016, this absence of documentation for a part of the co-residency period is not fatal to respondent's claim where a totality of the testimony as to her continued residence at the premises is credible and unrebutted."

Accordingly, based on the totality of the credible evidence, including the granddaughter's "demeanor on the witness stand and the logic and consistency of her sworn testimony," the court held that the granddaughter had proven that she is the successive tenant of the subject premises, not a licensee. Accordingly, the court dismissed the holdover proceeding with prejudice.

1560 GC LLC v. Dunbar, Civil Court, Bronx Co., Case No. 47930/18, decided Jan. 29, 2020, Black, J.

Scott E. Mollen is a partner at Herrick, Feinstein.