Preview
FILED: NEW YORK COUNTY CLERK 07/20/2023 12:19 PM INDEX NO. 451368/2023
NYSCEF DOC. NO. 522 RECEIVED NYSCEF: 07/20/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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In the Matter of the Application of THE CITY OF NEW YORK; and Index No. 451368/2023
MOLLY WASOW PARK, in her official capacity as Commissioner of
the New York City Department of Social Services, IAS Part 11
Petitioners-Plaintiffs, Hon. Lyle E. Frank
v.
Mot. Seq. 001,008,015
COUNTY OF ROCKLAND, et al.,
Respondents-Defendants,
Mot. Seq. 016
For a Judgment pursuant to Article 78 and for a Declaratory Judgment
under Article 30 of the Civil Practice Law and Rules.
------------------- ------------------------------------------------------------- X
REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF
PETITIONERS-PLAINTIFFS' VERIFIED PETITION AND COMPLAINT AND
MOTION FOR CONSOLIDATION AND A PRELIMINARY INJUNCTION AND
IN OPPOSITION TO MOTIONS AND CROSS MOTIONS TO DISMISS
HON. SYLVIA 0. HINDS-RADIX
Corporation Counsel of the City ofNew York
Attorneys for Petitioners-Plaintiffs
100 Church Street
New York, New York 10007
(212) 356-2296
July 17, 2023
DORIS F. BERNHARDT
ANJAN MISHRA
OTIS N. COMORAU
AATIF IQBAL
ELIZABETH M. SLATER
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TABLE OF CONTENTS
PRELIMINARY STATEMENT .............. ....................... ............. ....................... ........................... 1
ARGUMENT ........................................ ..... ........ ..... ............ ...................... .................... ........... ....... 3
POINT I ............................................................................ ............ ....... ............................. .. 3
The Court Should Consolidate the Cases Pending Throughout the State
with This Lawsuit in New York County 3
POINT II ....... ............................................................... ................ ............. ...... ................. ... 8
The Court Should Immediately Enjoin Respondents' Unlawful Bos 8
A. The Preliminary Injunction Would Preserve the Status Quo, Would
Not Grant the City its Ultimate Relief and Would Be Easily Reversible ... 9
B. The Venue Provisions of CPLR 6311 Do Not Bar a Preliminary
Injunction ................................................. ................................... .............. 10
C. The City Will Suffer Irreparable Injury Absent an Injunction Against
Respondents' Unlawful EOs ............... .................................... ...... ... ... ...... 11
D. The City Is Likely to Succeed on the Merits oflts Claims That
Respondents' EOs Are Unlawful.. .. .............. .......................... .................. 12
1. The City Has Standing ................... ......................................................... .. 13
2. The City's Lawsuit is Not Moot ............................................................... 22
3. The Controversy is Justiciable .................................. ............................. ... 24
4. The United States Is Not a Necessary Party ....... ...................................... 25
5. The Petition States a Claim Under Article 78 and CPLR 3001 ................ 26
6. The City Seeks Mandamus to Review ...................................................... 26
7. This Lawsuit Is Not Duplicative of any Pending Lawsuit ........ ................ 27
8. The City Is Likely to Prevail on Count I of the Petition ........................... 29
9. The City Is Likely to Prevail on Count II of the Petition .......................... 35
10. The City Is Likely to Prevail on Count III of the Petition ........................ 37
11. The City Is Likely to Prevail on Count IV of the Petition ........................ 38
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12. The City Is Likely to Prevail on Count V of the Petition ........ ............. .... 38
E. The Public Interest and Equities Weigh in the City's Favor .............. ...... 41
POINT III ................ ... ... .... ............................... ...................... ...................... .... ................. 42
The Motions to Dismiss Should be Denied 42
POINT IV ................................................................................ .................... ...................... 42
The Motions to Sever Should be Denied 42
POINT V ........... :... ... .................................. .... ..... ........................... .......... .... ..................... 46
The Motions to Change Venue Should be Denied 46
POINT VI. ........................ .................................. .... ...................... ..................................... 51
The Requests to Stay the Lawsuit Should be Denied 51
CONCLUSION .................................................................. ........................ .......... ........ ................. 52
CERTIFICATE OF COMPLIANCE ........ ........ ........... ....... ... ... ........ ............................................ 53
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PRELIMINARY STATEMENT
The City of New York is facing an enormous and unprecedented humanitarian crisis as a
result of the rapid influx into the City of tens of thousands of asylum seekers needing immediate,
emergency, temporary housing assistance. The City of New York has marshalled all the resources
at its disposal to meet this emergent crisis, including locating hotel space outside of its territory,
where asylum seekers may be temporarily placed as a last resort as authorized by the Social
Services Law ("SSL"). In response, the Respondents-Defendants ("Respondents") have issued
executive orders ("EOs") that seek to prevent the City of New York from using, at its own expense,
commercial hotels in Respondents' borders. Five jurisdictions-Rockland County, Orange
County, Dutchess County, Onondaga County, and the Town of Colonie-went a step further and
filed essentially identical lawsuits against the City of New York, local hotels, and others to block
asylum seekers from finding refuge in their communities ("County Cases").
On June 7, 2023, the City of New York and Molly Wasow Park, in her capacity as
Commissioner of DSS (collectively, "the City"), filed a hybrid Verified Petition/Complaint
("Petition") and concurrently moved for an order (1) consolidating the five aforementioned
lawsuits filed against the City with the instant lawsuit, and (2) granting a preliminary injunction
against the application, or further application, of Respondents' unlawful EOs against the City.
Consolidation should be granted to mitigate the risk of inconsistent decisions and waste of
judicial resources. A preliminary injunction should be granted because the EOs are irreparably
harming the City by hamstringing its efforts to find temporary housing for asylum seekers. In
addition, the EOs are unlawful. The EOs are not within Respondents' emergency powers because,
in issuing the EOs, Respondents did not identify any actual on-going emergency in their
communities that warranted an order to protect life and property. Nor do their EOs protect life or
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property. Instead the EOs prohibit conduct the SSL permits; they bar the City from using hotel
space in Respondents' communities to provide temporary placements for asylum seekers as a last
resort, at the City's expense-as the City is authorized to do under the SSL. They also target
asylum seekers for poor treatment by restricting whether they can stay in violation of
antidiscrimination laws, federal immigration laws, and the United States Constitution's Equal
Protection Clause and right to travel. Finally, the equities balance in the City's favor: the City is
seeking to address an ongoing humanitarian crisis, while Respondents are seeking, at all costs, to
bar a small number of asylum seekers from temporarily staying in local hotels.
Respondents opposed the City's motion to consolidate and for a preliminary injunction on
July 13, 2023. Certain Respondents also filed motions and/or cross motions to dismiss, sever, and
change venue. 1 In opposing the City's motion and Petition, Respondents largely ignore the glaring
legal defects in their EOs. Instead, they recite a false narrative in which the City, by seeking to
temporarily place at its own expense a small number of asylum seekers in their jurisdictions, is
somehow burdening the Respondent communities. But the City is retaining fiscal responsibility
for the persons it places outside the City in accordance with the SSL-as the City has repeated
over and over and as Respondents are well aware. In fact, the Respondents' fierce opposition to
the City is animated by the same motives that led to the EOs: to keep asylum seekers out.
1
Cross motions and/or motions returnable on July 18, 2023 were filed by Putnam County
(NYSCEF 100,240; Mot. Seq. I); Rockland and Orange Counties (NYSCEF 376-388; Mot. Seq.
1); Schuyler County (NYSCEF 250--259, 288-294, 364-375; Mot. Seq. I, 8); and Warren County
(NYSCEF 337-351; Mot. Seq. I, 15). The remaining Respondents filed oppositions or motions
returnable at a later date. Each Respondent's memo of law, or if there was no memo of law,
attorney affirmation, shall be referred to as "[County Name] Br." or "[County Name] Aff." as
appropriate, except that the joint memo of law on behalf of Rockland and Orange County shall be
referred to as "Rockland/Orange Br." and the memo of law filed on behalf of multiple counties
and individual respondents (NYSCEF 402-441) shall be referred to as "34 Respondents Br." The
City's opening memo oflaw shall be referred to as "MOL."
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The City files this reply in further support ofits motion to consolidate and for a preliminary
injunction and in opposition to the cross motions filed by Respondents. The City's motions should
be granted, and Respondents' motions denied.
ARGUMENT
POINT I
THE COURT SHOULD CONSOLIDATE THE CASES PENDING THROUGHOUT THE
STATE WITH THIS LAWSUIT IN NEW YORK COUNTY
Respondents do not offer any persuasive reason why this Court should not consolidate or
join for all pre-trial and trial proceedings the County Cases with the instant case and set New York
County as the venue for the consolidated lawsuit.
"It is well settled that there is a preference for consolidation in the interest of judicial
economy where there are common questions of law and fact." Geneva Temps, Inc. v. New World
Communities, Inc., 24 A.D.3d 332,334 (1st Dep't 2005); see also Lema v. 1148 Corp., 176 A.D.3d
653, 654 (1st Dep't 2019); Teitelbaum v. PTR Co., 6 A.D.3d 254, 255 (1st Dep't 2004).
Consolidation does not just save time and expense; it "foreclose[s] inconsistent determinations."
ISA Realty Group, LLC v. EBM Dev. Co., 212 A.D.3d 427,427 (1st Dep't 2023).
Respondents cannot deny that, at bottom, the County Cases and this one arise from the
same series of events: the statewide emergency created by the rapid influx into the State of asylum
seekers "with immediate housing and service needs," the City's efforts to respond to that
emergency by utilizing commercial hotel space outside of its borders, and Respondents' efforts to
prevent the City from carrying out its emergency response. Rubin Aff. Ex. E. Given these common
facts, consolidation is warranted to prevent inconsistent findings and for reasons of judicial
efficiency as the same evidence will be proffered by the City in all five lawsuits. See Hilario v City
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of New York, 2017 N.Y. Misc. LEXIS 3223, *5 (Sup. Ct., N.Y. Cty. Aug. 28, 2017); Reidv. City
of New York, 2012 N.Y. Misc. LEXIS 4000, *4 (Sup. Ct., N.Y. Cty. Aug. 15, 2012)
("Consolidation is appropriate where the proffered evidence is the same for each action.").
Additionally, these cases involve material common questions oflaw relating to the City's authority
to use commercial hotel rooms outside of its borders to provide temporary housing assistance in
the context of a statewide emergency. See MOL at 15.
Indeed, although Onondaga, Rockland, and Orange County oppose consolidation, they
concede that the instant action and the County Cases arise from the same factual circumstances,
arguing that the instant lawsuit and the County cases are in fact "substantially the same." Onondaga
Venue Br. [NYSCEF 136) at 4, Rockland/Orange Br. at 4. Onondaga County's briefing is notably
inconsistent: it argues both that the instant lawsuit is duplicative of its pending lawsuit against the
City and should be dismissed, and that the two lawsuits are factually and legally distinct. Onondaga
Br. at 7-8. Respondents cannot assert that these cases involve the same questions of fact and law
when it is convenient for them to do so and then run away from that theory when it is not. 2
Not a single Respondent explains-because they cannot-how the City will avoid being
prejudiced by inconsistent decisions, one of the chief dangers of allowing lawsuits involving the
same law and facts to proceed separately, if consolidation is not granted. Indeed, this has already
2
Several Respondents oppose consolidation but simultaneously assert that the City has generated
this lawsuit in an effort to forum shop. See Onondaga Br. at 1; Niagara Br. at 29-30. These
Respondents assert that "the causes of action set forth in the Verified Petition in the instant case
are essentially regurgitations of the causes ofaction set forth in the petitions in the Pending Cases,"
again conceding that the County Cases and the instant case have overlapping questions of law and
fact. See Niagara Opp. at 30. In addition, several Respondents argue that the County Cases
"challenge the legality of the migrant transfer program," and, if those cases are decided, then "the
City's case[] against all the municipalities becomes moot." 34 Respondents Br. at 35 n.3. This is
yet another admission that there are intertwined questions of fact and law between the County
Cases and the instant action.
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manifested. In the lawsuit filed against the City by the Town of Colonie, Colonie's request to
preliminarily enjoin the City from providing temporary housing assistance to asylum seekers was
denied. See Reply Affirmation of Doris Bernhardt ("Bernhardt Reply Aff."), Ex. 1 (Town of
Colonie, et al. v. City of New York, et al., Index No. 904641/23 (Sup. Ct., Albany Cty. Jun. 21,
2023), NYSCEF 51). By contrast, in the lawsuit brought by Orange County, a nearly identical
request was granted. See Bernhardt Reply Aff., Ex. 2 (County ofOrange, et al. v. City ofNew York,
et al., Index No. EF003109 (Sup. Ct., Orange Cty. June 21, 2023), NYSCEF 75). Accordingly, if
consolidation is denied, the City will be hamstrung in its ability to provide a uniform response to
the ongoing statewide emergency. Orange County has in fact admitted that piecemeal results are
harmful in emergency situations like this one that have "dire consequences state-wide."
Rockland/Orange Br. at 4, Deide v. Day, No. 7:23-cv-03954 (S.D.N.Y. May 18, 2023), ECF No.
29.
Respondents' arguments that consolidation should not be granted because the County
Cases involve facts specific to their localities and include different parties are without merit. There
does not need to be a complete overlap of fact and legal questions for consolidation to be
warranted. See Grzesik v. Sanchez, 2022 N.Y. Misc. LEXIS 90, *6 (Sup. Ct., N.Y. Cty. Jan. 11,
2022). ("In determining whether two actions should be consolidated, it is not necessary that all the
issues of law and all the facts be common to both actions."). It is sufficient that there is a "single
common issue." Harby Associates, Inc. v. Seaboyer, 82 A.D.2d 992, 993 (3d Dep't 1981);
Chiacchia v. National Westminster Bank, 124 A.D.2d 626, 628 (2d Dep't 1986). Nor is it a bar to
consolidation that the cases involve differing parties. See Grzesik v. Sanchez, 2022 N.Y. Misc.
LEXIS 90, at *6 ("Consolidation or joint trial ... will not be withheld merely because some of the
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parties involved are different."). 3 Given that the County Cases and the instant case arise from the
same set of facts and involve intertwined questions of law, the City more than meets the standard
for consolidation.
Respondents are mistaken that consolidation will neither conserve resources nor ease
decision making. Having these cases heard in one forum will avoid a multiplicity of actions and
the concomitant unnecessary expenditure of resources entailed by parallel state courts deciding
related issues. It will also avoid prejudicing the City by forcing its attorneys to crisscross
throughout the State to respond to lawsuits relating to the same series of events. Respondents argue
that consolidation "would utilize an excessive amount of this Court's judicial resources to
harmonize the postures of these cases," but they provide no support for this statement. See Niagara
Br. at 28. It is evident that having one court decide related issues uses fewer resources than having
five separate courts decide them.
Respondents' arguments that they will be prejudiced by consolidation are also wrong.
Respondents will not suffer any substantial delay if consolidation were granted. No discovery has
been commenced to date and all the cases are in their early stages. In any event, "[a] delay is not
a sufficient basis to deny consolidation." Michilli, Inc. v. Aquavit, Inc., 2021 N.Y. Misc. LEXIS
1504, * I (Sup. Ct., N. Y. Cty. April 7, 2021 ). Respondents' conclusory assertions that
consolidation will cause unnecessary ''jury confusion," bolster claims to their disadvantage, unduly
complicate the issues, and render the litigation unwieldy are also without merit. Any concern
3
Colonie's argument that consolidation must be denied because the City is a plaintiff in one action
and a defendant in the other is unavailing. Colonie Br. at 4. Courts have made clear that where
consolidation is warranted but would result in a party being both a plaintiff and a defendant, the
proper course of action is to join the cases for "discovery and trial," Nan Yang v. Rong Chen, 2021
N.Y. Misc. LEXIS 1065, * 13 (Sup. Ct., N.Y. Cty. Mar. 8, 2021), instead of merging them "into a
single action," Padilla v. Greyhound Lines, Inc., 29 A.D.2d 495, 497 (1st Dep't 1968). Joinder for
the purposes of discovery and trial is the main relief that the City seeks here.
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regarding these issues is alleviated by the fact that the cases to be consolidated are hybrid Article
78 petitions to be tried in front of a judge, not a jury. For this reason, Skelly v. Sachem Cent. Sch.
Dist., 309 A.D.2d 917,918 (2d Dep't 2003), cited by numerous Respondents has no bearing on
this case. In addition, Respondents provide no explanation as to how consolidation would unduly
complicate the issues or render the litigation unwieldy. It takes more than simply increasing the
causes of action or the number of witnesses to be heard to meet this standard. 4 See, e.g., Durante
Bros. & Sons, Inc. v. Rentar Indus. Dev. Corp., 76 A.D.2d 825, 826 (consolidation not warranted
because cases at different litigation states and one involved a "complex, consolidated mechanic's
lien").
Finally, Respondents proffer no persuasive argument as to why venue for the consolidated
action should not be fixed as New York County. 5 Where actions have been commenced in different
counties, the "general rule" is that "venue of the first action commenced should be deemed the
place of joint trial," unless "special circumstances" are present. Ferolito v. Vultaggio, 115 A.D.3d
541, 542 (1st Dep't 2014) (internal citations omitted). The decision as to whether "special
4
Schuyler County asserts that consolidation is prejudicial because there will be an increased "cost
to each individual county by the sheer volume of pleadings generated by such a mass litigation."
Schuyler Br. at 16. But, it is the City that has to respond to an increasing number of motions, not
Respondents. Even were the cases consolidated, Respondents would have to respond to only one
pleading-the City's Verified Petition. The Court should not give credence to this argument.
5
Schuyler and Onondaga County argue that consolidation would be prejudicial because the
material events took place in their jurisdictions, and consolidation would force material witnesses
to have to travel to foreign jurisdictions. See Schuyler Br. at 16-17; Onondaga Br. at 9. These
arguments are a re-hashing of the arguments raised in Respondents' motions to sever and change
venue, and they have been addressed extensively by the City in its opposition. See Pet'rs-Pls. Mem.
of Law in Opp. to Mots. to Change Venue and for Severance and in Opp. to Onondaga County's
Mot. to Dismiss [NYSCEF 301] ("City Venue Opp.") at 8-13. The City incorporates its arguments
in opposition to Respondents' motion to sever here.
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circumstances" exist is left to the sound discretion of the court. Mattia v. Food Emporium, Inc.,
259 A.D.2d 527, 527 (2d Dep't 1999).
Here, the material events common to all the cases-the dramatic influx of asylum seekers
into New York City and the decision to utilize commercial hotel space in other jurisdictions-took
place in New York County. See also City Venue Opp. at 9-10. The first filed jurisdiction-
Rockland County-offers no such benefits; only facts specific to Rockland County took place
there, and, as a result, it bears "no connection" to any of the other cases. 6 See Lema, 176 A.D.3d
at 654. In addition, if a joint hearing is held, New York County would be the most convenient
location to hold such a hearing given that New York City is a transit hub and attorneys would be
traveling from numerous counties across the state. Accordingly, special circumstances dictate that
New York County should be the venue of the consolidated action.
POINT II
THE COURT SHOULD IMMEDIATELY ENJOIN RESPONDENTS' UNLAWFUL EOS
The City is entitled to a preliminary injunction preventing the application, or further
application, of Respondents' illegal and ultra vires EOs. 7 In the absence of an injunction, the City
6
In the brief filed on behalf of34 Respondents, including Dutchess County, the Respondents argue
that the first filed rule dictates that Dutchess County is the proper venue for the consolidated action.
34 Respondent Br. at 36. Onondaga claims that the first filed rule dictates that venue be set in
Onondaga. Onondaga Br. at 9. These respondents misconstrue the rule; in the consolidated action,
Rockland County would be the location of the first filed action. For the reasons set forth above,
venue is inappropriate in Rockland County.
7
Several Respondents, including the Counties of Broome, Cayuga, Cortland, Chemung, Herkimer,
Orleans, Otsego, Schuyler, and Sullivan, contend that their EOs have expired. See 34
Respondents' Br. at 4, Cortland Br. at 3, Schuyler Br. at 5-7. While this does not render the City's
claims against these Respondents moot, see infra, the City recognizes that an injunction cannot
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will suffer irreparable harm due to the ever growing number of asylum seekers and the urgent need
to locate additional temporary shelter. The City is also likely to succeed on the merits of its lawsuit,
and the balance of equities clearly tilts in its favor. See CPLR 6301; Handler v. 1050 Tenants
Corp., 295 A.D.2d 238, 239 (1st Dep't 2002).
A. The Preliminary Injunction Would Preserve the Status Quo, Would Not
Grant the City its Ultimate Relief and Would Be Easily Reversible
Contrary to Respondents' assertions, the City is seeking to preserve, not change, the status
quo through a preliminary injunction. See e.g. Suffolk Br. at 4, Onondaga hr. at 10-11. The
preliminarily injunction would restrain Respondents from enforcing against the City their unlawful
EOs, which include criminal and civil sanctions. The injunction would leave in place any other
legal limitations on the City's use of hotel space for asylum seekers. 8 Likewise, the preliminary
injunction would not grant the City all the relief it seeks in this lawsuit, nor would it be irreversible.
See e.g. Suffolk Br. at 4, Onondaga Br. at 10. The Petition seeks vacatur of the EOs and a
declaration that they are null and void, see Petition Wherefore clauses, but the preliminary
injunction motion does not seek this relief. If Respondents prevail, the preliminary injunction
would not prevent Respondents from enforcing their EOs going forward.
"
issue to restrain an EO that does not exist and is a nullity. Accordingly, while the City seeks a
permanent injunction and declaration against these Respondents, and reserves the right to seek a
preliminary injunction against them in the future if they revive their EOs, it withdraws its request
for a preliminary injunction as to these expired EOs at this time.
8
Notably, temporary restraining or preliminary injunctions bar the City from using hotel space in
certain of the Respondents' communities.
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B. The Venue Provisions of CPLR 6311 Do Not Bar a Preliminary Injunction
Furthermore, contrary to Respondents, the venue provisions of CPLR 6311 do not apply
here. Onondaga Br. at 6-7. Under CPLR 6311, a preliminary injunction to restrain a "public
official" or "municipal corporation" from performing a "statutory duty" may only be granted "in
the department in which the officer or board is located or in which the duty is required to be
performed." However, the city is not seeking to enjoin Respondents from performing any duty
conferred by statute. No statute authorizes, much less directs, Respondents to enforce EOs that
prevent the City from addressing the asylum seekers crisis, a declared state-wide emergency, as
authorized by the SSL.
Indeed, as set forth in the City's moving papers and further below, Respondents' EOs are
unlawful and unconstitutional. Where, as here, the validity and constitutionality of executive action
is in question, CPLR 6311 does not apply. See Skelos v. Paterson, 65 A.D.3d 339, 345-346 (2d
Dept. 2009), rev 'don other grounds, 13 N.Y.3d 141 (holding that where questions of venue under
CPLR 6311 merged with merits of the preliminary injunction motion, 6311 did not apply).
Moreover, to the extent Respondents seek to enforce the EOs, this enforcement would occur, at
least in part, in New York County, as the City is located here, the asylum seeker crisis is centered
here, and any impact of the enforcement would be felt here. CPLR 6311 does not prevent the court
from granting a preliminary injunction. 9
9
Respondents' reliance on Bull v. Stichman, 189 Misc. 590 (Sup. Ct. Albany Cty. 1947) is
misplaced. There, the plaintiff sought to restrain government officials from performing acts that
were specifically authorized by state law and, in any event, the court found that the plaintiff did
not state a cause of action. Id at 597. In Gallivan v. Cuomo, 71 Misc. 3d 589 (Supt. Ct. Erie Cty.
2021), rev'd on other grounds, 2021 N.Y. App. Div. LEXIS 2340, the court did not find, as
Respondents contend, Onondaga Br. at 7, that preliminarily enjoining an executive order issued
by the governor qualified as "attempting to restrain a public official." Rather, the court ~etermined
that there was no CPLR 6311 issue because the State officials and agencies sought to be restrained
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C. The City Will Suffer Irreparable Injury Absent an Injunction Against
Respondents' Unlawful EOs
The City will suffer immediate, irreparable harm without a preliminary injunction. As
detailed at length in the City's moving papers, the City has made extraordinary efforts to massively
expand its ability to provide temporary housing assistance and accommodate tens of thousands of
asylum seekers in locations within the City. MOL at 3-7. The City has now reached its breaking
point, is over capacity, and, as authorized by the SSL and its supporting regulations, directives,
and agency interpretations, must seek hotel space outside of its territory to provide asylum seekers
temporary places to stay at the City's expense. Without an injunction, the City is unlawfully
precluded from using hotel space in Respondents' communities, and accordingly, is unable to
effectively address an on-going humanitarian emergency. Additionally, the harsh penalties and
criminal sanctions in the EOs deter hotels from working with the City and agreeing to provide the
space that is needed and available.
Many Respondents do not address the irreparable harm the City is experiencing at all--or
summarily dismiss it without elaboration, implicitly conceding that the City establishes this
element of the preliminary injunction standard. However, several Respondents argue that the City
cannot establish irreparable harm because it has not specifically pleaded that every hotel in the
City is filled to capacity and that the City is full. See e.g. Niagara Br. at 21; Thirty-Four Respondent
Br. at 13. This argument is meritless. The City's moving papers repeat ad nauseum that its
shelters, hotels, and even alternative spaces (such as the Brooklyn Cruise Terminal) do not have
available space. See e.g. Pet. ,r,r 1, 83, 90, 124; Rubin AffEx. P ,r 20 ("The City has reached the
were domiciled in the county where the action was pending. See Gallivan v. Cuomo, 71 Misc. 3d
at 593.
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limit on shelter capacity"); Shaeffer Aff. ,r,r 9 (describing temporary arrangements at "Randall's
Island, the Brooklyn Cruise Terminal, previously vacant buildings, and at hotels."); 22 ("the City
is over capacity.").
Some Respondents further argue that the City has not established irreparable harm because
it has not alleged that it is "precluded from placing migrants in all municipalities throughout New
York State." Niagara Br. at 22, see also e.g. 34 Respondents Br. at 30. However, this assertion
makes no sense: by Respondents' logic, until every single county in the State has barred the City
from using hotels in its jurisdiction, there will be no irreparable harm to the City from being
excluded from any specific county.
Certain Respondents also argue that the City's claims of irreparable harm are not genuine
because the City has been handling the asylum seekers crisis alone for eight months. Suffolk Br.
at 4. But, this is precisely the point: the City has made every effort, in accordance with the SSL
to provide emergency housing assistance to those found in its jurisdiction. It is only now, that it
has run out of local capacity that, as a last resort, it is seeking to use hotels outside of its territory
to provide temporary housing assistance.
The City has established irreparable harm absent an injunction.
D. The City Is Likely to Succeed on the Merits of Its Claims That
Respondents' EOs Are Unlawful
Contrary to Respondents, and as set forth in its opening brief and further below, the City
is likely to prevail on the merits of its claims because it establishes that the EOs are not authorized
by Executive Law 24, conflict with the SSL, conflict with state and federal anti-discrimination
law, are conflict preempted by federal immigration law and violate the United States Constitution.
Respondents also argue that the City lacks standing, that the lawsuit is moot, that the lawsuit is not
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justiciable, that the City failed to join a necessary party, and that the City fails to state a claim
under Article 78. None of these arguments hold water.
1. The City Has Standing
The City has standing to challenge Respondents' EOs because the EOs deliberately target
the City and seek to prevent it from lawfully addressing the asylum seekers crisis.
The City easily meets the two-part test for standing: the City demonstrates (1) '"injury in
fact,' meaning that plaintiff will actually be harmed by the challenged ... action," and "the injury
[is] more than conjectural"; and (2) "the injury ... fall[s] within the zone of interests or concerns
sought to be promoted." N.Y State Ass 'n of Nurse Anesthetists v. Novello, 2 N.Y.3d 207, 211
(2004). Many of the Respondents' EOs expressly identify the City's actions as the reasons for
issuing an EO and then announce schemes of prohibitions and civil and criminal remedies that are
calculated to injure the City, its officials, and employees, or anyone who might work with them to
help find temporary shelter for migrants or asylum seekers in their county. Other Respondents'
EOs have slightly different wording but still expressly prohibit any "municipality" from
contracting with local hotels to provide housing or accommodations to migrants or asylum seekers
and/or prohibit local hotels form contracting with any 'external municipality" to provide housing
for migrants or asylum seekers without a prior license. See Pet. ,r,r 112-113 & Exs. A-EE. And
irrespective of variations in their drafting, all of the Respondents' EOs do more than obstruct the
City from utilizing vacant hotel space in Respondents' communities to provide temporary housing
assistance; they also deter hotels that might otherwise work with the City to provide such
assistance. See Pet. ,r 114.
There is no basis to shield the Respondents' EOs from judicial review, and the City, as a
party with a genuine stake in challenging the EOs, clearly has standing to mount such a challenge.
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See Ass'nfor a Better Long Is., Inc. v. NY. State Dep't of Envtl. Conservation, 23 N.Y.3d 1, 6-7
(2014) ("[S]tanding rules 'should not be heavy-handed. Rather, we have been reluctant to apply
these principles in an overly restrictive manner where the result would be to completely shield a
particular action from judicial review.") (quotation omitted); Stevens v. New York State Div. of
Criminal Justice Servs., 206 A.D.3d 88, 99 (1st Dep't 2022) ("The standing requirement, which is
designed to ensure that the bearer of a lawsuit is one with a genuine stake in the litigation, should
not serve as a technical barrier to review of administrative action."). The Respondents' standing
challenges are baseless.
a. The Respondents' EOs Injure the City in Fact
The EOs injure the City in fact by prohibiting it from contracting to transport asylum
seekers to the Respondents' counties and from contracting with local hotels to temporarily place
asylum seekers in those counties, absent written permission from the counties. 10 Unfortunately,
after many months of accommodating ever growing numbers of asylum seekers, the City has
reached capacity and is at its breaking point. Pet. ,r 126. The City must use available, excess
capacity in other jurisdictions to provide temporary placements for asylum seekers when it is
needed, as authorized by the SSL. Respondents, through their EOs, have unlawfully barred the
City from doing so, causing injury to the City as it seeks to find locations to temporarily house the
expanding population of asylum seekers. See Pet. ,r,r 110-114 & Exs. A-EE; see also Bernhardt
Reply Aff. ,r,r & Exs. 3-5.
Respondents' EOs go further; they outline schemes of remedies and penalties, which the
City will incur if it uses hotel space within the respective counties, including appearance tickets;
10
The EOs do not provide a mechanism for seeking written permission, and no such permission is
required under the SSL or its implementing regulations, directives, or agency interpretations.
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Preview
FILED: NEW YORK COUNTY CLERK 07/20/2023 12:19 PM INDEX NO. 451368/2023 NYSCEF DOC. NO. 522 RECEIVED NYSCEF: 07/20/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------ -- ---·--·-•-- -- ----- - - - - - -- --------- --------------------------- ---- - - --------- X In the Matter of the Application of THE CITY OF NEW YORK; and Index No. 451368/2023 MOLLY WASOW PARK, in her official capacity as Commissioner of the New York City Department of Social Services, IAS Part 11 Petitioners-Plaintiffs, Hon. Lyle E. Frank v. Mot. Seq. 001,008,015 COUNTY OF ROCKLAND, et al., Respondents-Defendants, Mot. Seq. 016 For a Judgment pursuant to Article 78 and for a Declaratory Judgment under Article 30 of the Civil Practice Law and Rules. ------------------- ------------------------------------------------------------- X REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF PETITIONERS-PLAINTIFFS' VERIFIED PETITION AND COMPLAINT AND MOTION FOR CONSOLIDATION AND A PRELIMINARY INJUNCTION AND IN OPPOSITION TO MOTIONS AND CROSS MOTIONS TO DISMISS HON. SYLVIA 0. HINDS-RADIX Corporation Counsel of the City ofNew York Attorneys for Petitioners-Plaintiffs 100 Church Street New York, New York 10007 (212) 356-2296 July 17, 2023 DORIS F. BERNHARDT ANJAN MISHRA OTIS N. COMORAU AATIF IQBAL ELIZABETH M. SLATER 1 of 56 FILED: NEW YORK COUNTY CLERK 07/20/2023 12:19 PM INDEX NO. 451368/2023 NYSCEF DOC. NO. 522 RECEIVED NYSCEF: 07/20/2023 TABLE OF CONTENTS PRELIMINARY STATEMENT .............. ....................... ............. ....................... ........................... 1 ARGUMENT ........................................ ..... ........ ..... ............ ...................... .................... ........... ....... 3 POINT I ............................................................................ ............ ....... ............................. .. 3 The Court Should Consolidate the Cases Pending Throughout the State with This Lawsuit in New York County 3 POINT II ....... ............................................................... ................ ............. ...... ................. ... 8 The Court Should Immediately Enjoin Respondents' Unlawful Bos 8 A. The Preliminary Injunction Would Preserve the Status Quo, Would Not Grant the City its Ultimate Relief and Would Be Easily Reversible ... 9 B. The Venue Provisions of CPLR 6311 Do Not Bar a Preliminary Injunction ................................................. ................................... .............. 10 C. The City Will Suffer Irreparable Injury Absent an Injunction Against Respondents' Unlawful EOs ............... .................................... ...... ... ... ...... 11 D. The City Is Likely to Succeed on the Merits oflts Claims That Respondents' EOs Are Unlawful.. .. .............. .......................... .................. 12 1. The City Has Standing ................... ......................................................... .. 13 2. The City's Lawsuit is Not Moot ............................................................... 22 3. The Controversy is Justiciable .................................. ............................. ... 24 4. The United States Is Not a Necessary Party ....... ...................................... 25 5. The Petition States a Claim Under Article 78 and CPLR 3001 ................ 26 6. The City Seeks Mandamus to Review ...................................................... 26 7. This Lawsuit Is Not Duplicative of any Pending Lawsuit ........ ................ 27 8. The City Is Likely to Prevail on Count I of the Petition ........................... 29 9. The City Is Likely to Prevail on Count II of the Petition .......................... 35 10. The City Is Likely to Prevail on Count III of the Petition ........................ 37 11. The City Is Likely to Prevail on Count IV of the Petition ........................ 38 - ii - 2 of 56 FILED: NEW YORK COUNTY CLERK 07/20/2023 12:19 PM INDEX NO. 451368/2023 NYSCEF DOC. NO. 522 RECEIVED NYSCEF: 07/20/2023 12. The City Is Likely to Prevail on Count V of the Petition ........ ............. .... 38 E. The Public Interest and Equities Weigh in the City's Favor .............. ...... 41 POINT III ................ ... ... .... ............................... ...................... ...................... .... ................. 42 The Motions to Dismiss Should be Denied 42 POINT IV ................................................................................ .................... ...................... 42 The Motions to Sever Should be Denied 42 POINT V ........... :... ... .................................. .... ..... ........................... .......... .... ..................... 46 The Motions to Change Venue Should be Denied 46 POINT VI. ........................ .................................. .... ...................... ..................................... 51 The Requests to Stay the Lawsuit Should be Denied 51 CONCLUSION .................................................................. ........................ .......... ........ ................. 52 CERTIFICATE OF COMPLIANCE ........ ........ ........... ....... ... ... ........ ............................................ 53 - iii - 3 of 56 FILED: NEW YORK COUNTY CLERK 07/20/2023 12:19 PM INDEX NO. 451368/2023 NYSCEF DOC. NO. 522 RECEIVED NYSCEF: 07/20/2023 PRELIMINARY STATEMENT The City of New York is facing an enormous and unprecedented humanitarian crisis as a result of the rapid influx into the City of tens of thousands of asylum seekers needing immediate, emergency, temporary housing assistance. The City of New York has marshalled all the resources at its disposal to meet this emergent crisis, including locating hotel space outside of its territory, where asylum seekers may be temporarily placed as a last resort as authorized by the Social Services Law ("SSL"). In response, the Respondents-Defendants ("Respondents") have issued executive orders ("EOs") that seek to prevent the City of New York from using, at its own expense, commercial hotels in Respondents' borders. Five jurisdictions-Rockland County, Orange County, Dutchess County, Onondaga County, and the Town of Colonie-went a step further and filed essentially identical lawsuits against the City of New York, local hotels, and others to block asylum seekers from finding refuge in their communities ("County Cases"). On June 7, 2023, the City of New York and Molly Wasow Park, in her capacity as Commissioner of DSS (collectively, "the City"), filed a hybrid Verified Petition/Complaint ("Petition") and concurrently moved for an order (1) consolidating the five aforementioned lawsuits filed against the City with the instant lawsuit, and (2) granting a preliminary injunction against the application, or further application, of Respondents' unlawful EOs against the City. Consolidation should be granted to mitigate the risk of inconsistent decisions and waste of judicial resources. A preliminary injunction should be granted because the EOs are irreparably harming the City by hamstringing its efforts to find temporary housing for asylum seekers. In addition, the EOs are unlawful. The EOs are not within Respondents' emergency powers because, in issuing the EOs, Respondents did not identify any actual on-going emergency in their communities that warranted an order to protect life and property. Nor do their EOs protect life or 4 of 56 FILED: NEW YORK COUNTY CLERK 07/20/2023 12:19 PM INDEX NO. 451368/2023 NYSCEF DOC. NO. 522 RECEIVED NYSCEF: 07/20/2023 property. Instead the EOs prohibit conduct the SSL permits; they bar the City from using hotel space in Respondents' communities to provide temporary placements for asylum seekers as a last resort, at the City's expense-as the City is authorized to do under the SSL. They also target asylum seekers for poor treatment by restricting whether they can stay in violation of antidiscrimination laws, federal immigration laws, and the United States Constitution's Equal Protection Clause and right to travel. Finally, the equities balance in the City's favor: the City is seeking to address an ongoing humanitarian crisis, while Respondents are seeking, at all costs, to bar a small number of asylum seekers from temporarily staying in local hotels. Respondents opposed the City's motion to consolidate and for a preliminary injunction on July 13, 2023. Certain Respondents also filed motions and/or cross motions to dismiss, sever, and change venue. 1 In opposing the City's motion and Petition, Respondents largely ignore the glaring legal defects in their EOs. Instead, they recite a false narrative in which the City, by seeking to temporarily place at its own expense a small number of asylum seekers in their jurisdictions, is somehow burdening the Respondent communities. But the City is retaining fiscal responsibility for the persons it places outside the City in accordance with the SSL-as the City has repeated over and over and as Respondents are well aware. In fact, the Respondents' fierce opposition to the City is animated by the same motives that led to the EOs: to keep asylum seekers out. 1 Cross motions and/or motions returnable on July 18, 2023 were filed by Putnam County (NYSCEF 100,240; Mot. Seq. I); Rockland and Orange Counties (NYSCEF 376-388; Mot. Seq. 1); Schuyler County (NYSCEF 250--259, 288-294, 364-375; Mot. Seq. I, 8); and Warren County (NYSCEF 337-351; Mot. Seq. I, 15). The remaining Respondents filed oppositions or motions returnable at a later date. Each Respondent's memo of law, or if there was no memo of law, attorney affirmation, shall be referred to as "[County Name] Br." or "[County Name] Aff." as appropriate, except that the joint memo of law on behalf of Rockland and Orange County shall be referred to as "Rockland/Orange Br." and the memo of law filed on behalf of multiple counties and individual respondents (NYSCEF 402-441) shall be referred to as "34 Respondents Br." The City's opening memo oflaw shall be referred to as "MOL." -2- 5 of 56 FILED: NEW YORK COUNTY CLERK 07/20/2023 12:19 PM INDEX NO. 451368/2023 NYSCEF DOC. NO. 522 RECEIVED NYSCEF: 07/20/2023 The City files this reply in further support ofits motion to consolidate and for a preliminary injunction and in opposition to the cross motions filed by Respondents. The City's motions should be granted, and Respondents' motions denied. ARGUMENT POINT I THE COURT SHOULD CONSOLIDATE THE CASES PENDING THROUGHOUT THE STATE WITH THIS LAWSUIT IN NEW YORK COUNTY Respondents do not offer any persuasive reason why this Court should not consolidate or join for all pre-trial and trial proceedings the County Cases with the instant case and set New York County as the venue for the consolidated lawsuit. "It is well settled that there is a preference for consolidation in the interest of judicial economy where there are common questions of law and fact." Geneva Temps, Inc. v. New World Communities, Inc., 24 A.D.3d 332,334 (1st Dep't 2005); see also Lema v. 1148 Corp., 176 A.D.3d 653, 654 (1st Dep't 2019); Teitelbaum v. PTR Co., 6 A.D.3d 254, 255 (1st Dep't 2004). Consolidation does not just save time and expense; it "foreclose[s] inconsistent determinations." ISA Realty Group, LLC v. EBM Dev. Co., 212 A.D.3d 427,427 (1st Dep't 2023). Respondents cannot deny that, at bottom, the County Cases and this one arise from the same series of events: the statewide emergency created by the rapid influx into the State of asylum seekers "with immediate housing and service needs," the City's efforts to respond to that emergency by utilizing commercial hotel space outside of its borders, and Respondents' efforts to prevent the City from carrying out its emergency response. Rubin Aff. Ex. E. Given these common facts, consolidation is warranted to prevent inconsistent findings and for reasons of judicial efficiency as the same evidence will be proffered by the City in all five lawsuits. See Hilario v City -3- 6 of 56 FILED: NEW YORK COUNTY CLERK 07/20/2023 12:19 PM INDEX NO. 451368/2023 NYSCEF DOC. NO. 522 RECEIVED NYSCEF: 07/20/2023 of New York, 2017 N.Y. Misc. LEXIS 3223, *5 (Sup. Ct., N.Y. Cty. Aug. 28, 2017); Reidv. City of New York, 2012 N.Y. Misc. LEXIS 4000, *4 (Sup. Ct., N.Y. Cty. Aug. 15, 2012) ("Consolidation is appropriate where the proffered evidence is the same for each action."). Additionally, these cases involve material common questions oflaw relating to the City's authority to use commercial hotel rooms outside of its borders to provide temporary housing assistance in the context of a statewide emergency. See MOL at 15. Indeed, although Onondaga, Rockland, and Orange County oppose consolidation, they concede that the instant action and the County Cases arise from the same factual circumstances, arguing that the instant lawsuit and the County cases are in fact "substantially the same." Onondaga Venue Br. [NYSCEF 136) at 4, Rockland/Orange Br. at 4. Onondaga County's briefing is notably inconsistent: it argues both that the instant lawsuit is duplicative of its pending lawsuit against the City and should be dismissed, and that the two lawsuits are factually and legally distinct. Onondaga Br. at 7-8. Respondents cannot assert that these cases involve the same questions of fact and law when it is convenient for them to do so and then run away from that theory when it is not. 2 Not a single Respondent explains-because they cannot-how the City will avoid being prejudiced by inconsistent decisions, one of the chief dangers of allowing lawsuits involving the same law and facts to proceed separately, if consolidation is not granted. Indeed, this has already 2 Several Respondents oppose consolidation but simultaneously assert that the City has generated this lawsuit in an effort to forum shop. See Onondaga Br. at 1; Niagara Br. at 29-30. These Respondents assert that "the causes of action set forth in the Verified Petition in the instant case are essentially regurgitations of the causes ofaction set forth in the petitions in the Pending Cases," again conceding that the County Cases and the instant case have overlapping questions of law and fact. See Niagara Opp. at 30. In addition, several Respondents argue that the County Cases "challenge the legality of the migrant transfer program," and, if those cases are decided, then "the City's case[] against all the municipalities becomes moot." 34 Respondents Br. at 35 n.3. This is yet another admission that there are intertwined questions of fact and law between the County Cases and the instant action. -4- 7 of 56 FILED: NEW YORK COUNTY CLERK 07/20/2023 12:19 PM INDEX NO. 451368/2023 NYSCEF DOC. NO. 522 RECEIVED NYSCEF: 07/20/2023 manifested. In the lawsuit filed against the City by the Town of Colonie, Colonie's request to preliminarily enjoin the City from providing temporary housing assistance to asylum seekers was denied. See Reply Affirmation of Doris Bernhardt ("Bernhardt Reply Aff."), Ex. 1 (Town of Colonie, et al. v. City of New York, et al., Index No. 904641/23 (Sup. Ct., Albany Cty. Jun. 21, 2023), NYSCEF 51). By contrast, in the lawsuit brought by Orange County, a nearly identical request was granted. See Bernhardt Reply Aff., Ex. 2 (County ofOrange, et al. v. City ofNew York, et al., Index No. EF003109 (Sup. Ct., Orange Cty. June 21, 2023), NYSCEF 75). Accordingly, if consolidation is denied, the City will be hamstrung in its ability to provide a uniform response to the ongoing statewide emergency. Orange County has in fact admitted that piecemeal results are harmful in emergency situations like this one that have "dire consequences state-wide." Rockland/Orange Br. at 4, Deide v. Day, No. 7:23-cv-03954 (S.D.N.Y. May 18, 2023), ECF No. 29. Respondents' arguments that consolidation should not be granted because the County Cases involve facts specific to their localities and include different parties are without merit. There does not need to be a complete overlap of fact and legal questions for consolidation to be warranted. See Grzesik v. Sanchez, 2022 N.Y. Misc. LEXIS 90, *6 (Sup. Ct., N.Y. Cty. Jan. 11, 2022). ("In determining whether two actions should be consolidated, it is not necessary that all the issues of law and all the facts be common to both actions."). It is sufficient that there is a "single common issue." Harby Associates, Inc. v. Seaboyer, 82 A.D.2d 992, 993 (3d Dep't 1981); Chiacchia v. National Westminster Bank, 124 A.D.2d 626, 628 (2d Dep't 1986). Nor is it a bar to consolidation that the cases involve differing parties. See Grzesik v. Sanchez, 2022 N.Y. Misc. LEXIS 90, at *6 ("Consolidation or joint trial ... will not be withheld merely because some of the -5- 8 of 56 FILED: NEW YORK COUNTY CLERK 07/20/2023 12:19 PM INDEX NO. 451368/2023 NYSCEF DOC. NO. 522 RECEIVED NYSCEF: 07/20/2023 parties involved are different."). 3 Given that the County Cases and the instant case arise from the same set of facts and involve intertwined questions of law, the City more than meets the standard for consolidation. Respondents are mistaken that consolidation will neither conserve resources nor ease decision making. Having these cases heard in one forum will avoid a multiplicity of actions and the concomitant unnecessary expenditure of resources entailed by parallel state courts deciding related issues. It will also avoid prejudicing the City by forcing its attorneys to crisscross throughout the State to respond to lawsuits relating to the same series of events. Respondents argue that consolidation "would utilize an excessive amount of this Court's judicial resources to harmonize the postures of these cases," but they provide no support for this statement. See Niagara Br. at 28. It is evident that having one court decide related issues uses fewer resources than having five separate courts decide them. Respondents' arguments that they will be prejudiced by consolidation are also wrong. Respondents will not suffer any substantial delay if consolidation were granted. No discovery has been commenced to date and all the cases are in their early stages. In any event, "[a] delay is not a sufficient basis to deny consolidation." Michilli, Inc. v. Aquavit, Inc., 2021 N.Y. Misc. LEXIS 1504, * I (Sup. Ct., N. Y. Cty. April 7, 2021 ). Respondents' conclusory assertions that consolidation will cause unnecessary ''jury confusion," bolster claims to their disadvantage, unduly complicate the issues, and render the litigation unwieldy are also without merit. Any concern 3 Colonie's argument that consolidation must be denied because the City is a plaintiff in one action and a defendant in the other is unavailing. Colonie Br. at 4. Courts have made clear that where consolidation is warranted but would result in a party being both a plaintiff and a defendant, the proper course of action is to join the cases for "discovery and trial," Nan Yang v. Rong Chen, 2021 N.Y. Misc. LEXIS 1065, * 13 (Sup. Ct., N.Y. Cty. Mar. 8, 2021), instead of merging them "into a single action," Padilla v. Greyhound Lines, Inc., 29 A.D.2d 495, 497 (1st Dep't 1968). Joinder for the purposes of discovery and trial is the main relief that the City seeks here. -6- 9 of 56 FILED: NEW YORK COUNTY CLERK 07/20/2023 12:19 PM INDEX NO. 451368/2023 NYSCEF DOC. NO. 522 RECEIVED NYSCEF: 07/20/2023 regarding these issues is alleviated by the fact that the cases to be consolidated are hybrid Article 78 petitions to be tried in front of a judge, not a jury. For this reason, Skelly v. Sachem Cent. Sch. Dist., 309 A.D.2d 917,918 (2d Dep't 2003), cited by numerous Respondents has no bearing on this case. In addition, Respondents provide no explanation as to how consolidation would unduly complicate the issues or render the litigation unwieldy. It takes more than simply increasing the causes of action or the number of witnesses to be heard to meet this standard. 4 See, e.g., Durante Bros. & Sons, Inc. v. Rentar Indus. Dev. Corp., 76 A.D.2d 825, 826 (consolidation not warranted because cases at different litigation states and one involved a "complex, consolidated mechanic's lien"). Finally, Respondents proffer no persuasive argument as to why venue for the consolidated action should not be fixed as New York County. 5 Where actions have been commenced in different counties, the "general rule" is that "venue of the first action commenced should be deemed the place of joint trial," unless "special circumstances" are present. Ferolito v. Vultaggio, 115 A.D.3d 541, 542 (1st Dep't 2014) (internal citations omitted). The decision as to whether "special 4 Schuyler County asserts that consolidation is prejudicial because there will be an increased "cost to each individual county by the sheer volume of pleadings generated by such a mass litigation." Schuyler Br. at 16. But, it is the City that has to respond to an increasing number of motions, not Respondents. Even were the cases consolidated, Respondents would have to respond to only one pleading-the City's Verified Petition. The Court should not give credence to this argument. 5 Schuyler and Onondaga County argue that consolidation would be prejudicial because the material events took place in their jurisdictions, and consolidation would force material witnesses to have to travel to foreign jurisdictions. See Schuyler Br. at 16-17; Onondaga Br. at 9. These arguments are a re-hashing of the arguments raised in Respondents' motions to sever and change venue, and they have been addressed extensively by the City in its opposition. See Pet'rs-Pls. Mem. of Law in Opp. to Mots. to Change Venue and for Severance and in Opp. to Onondaga County's Mot. to Dismiss [NYSCEF 301] ("City Venue Opp.") at 8-13. The City incorporates its arguments in opposition to Respondents' motion to sever here. -7- 10 of 56 FILED: NEW YORK COUNTY CLERK 07/20/2023 12:19 PM INDEX NO. 451368/2023 NYSCEF DOC. NO. 522 RECEIVED NYSCEF: 07/20/2023 circumstances" exist is left to the sound discretion of the court. Mattia v. Food Emporium, Inc., 259 A.D.2d 527, 527 (2d Dep't 1999). Here, the material events common to all the cases-the dramatic influx of asylum seekers into New York City and the decision to utilize commercial hotel space in other jurisdictions-took place in New York County. See also City Venue Opp. at 9-10. The first filed jurisdiction- Rockland County-offers no such benefits; only facts specific to Rockland County took place there, and, as a result, it bears "no connection" to any of the other cases. 6 See Lema, 176 A.D.3d at 654. In addition, if a joint hearing is held, New York County would be the most convenient location to hold such a hearing given that New York City is a transit hub and attorneys would be traveling from numerous counties across the state. Accordingly, special circumstances dictate that New York County should be the venue of the consolidated action. POINT II THE COURT SHOULD IMMEDIATELY ENJOIN RESPONDENTS' UNLAWFUL EOS The City is entitled to a preliminary injunction preventing the application, or further application, of Respondents' illegal and ultra vires EOs. 7 In the absence of an injunction, the City 6 In the brief filed on behalf of34 Respondents, including Dutchess County, the Respondents argue that the first filed rule dictates that Dutchess County is the proper venue for the consolidated action. 34 Respondent Br. at 36. Onondaga claims that the first filed rule dictates that venue be set in Onondaga. Onondaga Br. at 9. These respondents misconstrue the rule; in the consolidated action, Rockland County would be the location of the first filed action. For the reasons set forth above, venue is inappropriate in Rockland County. 7 Several Respondents, including the Counties of Broome, Cayuga, Cortland, Chemung, Herkimer, Orleans, Otsego, Schuyler, and Sullivan, contend that their EOs have expired. See 34 Respondents' Br. at 4, Cortland Br. at 3, Schuyler Br. at 5-7. While this does not render the City's claims against these Respondents moot, see infra, the City recognizes that an injunction cannot - 8- 11 of 56 FILED: NEW YORK COUNTY CLERK 07/20/2023 12:19 PM INDEX NO. 451368/2023 NYSCEF DOC. NO. 522 RECEIVED NYSCEF: 07/20/2023 will suffer irreparable harm due to the ever growing number of asylum seekers and the urgent need to locate additional temporary shelter. The City is also likely to succeed on the merits of its lawsuit, and the balance of equities clearly tilts in its favor. See CPLR 6301; Handler v. 1050 Tenants Corp., 295 A.D.2d 238, 239 (1st Dep't 2002). A. The Preliminary Injunction Would Preserve the Status Quo, Would Not Grant the City its Ultimate Relief and Would Be Easily Reversible Contrary to Respondents' assertions, the City is seeking to preserve, not change, the status quo through a preliminary injunction. See e.g. Suffolk Br. at 4, Onondaga hr. at 10-11. The preliminarily injunction would restrain Respondents from enforcing against the City their unlawful EOs, which include criminal and civil sanctions. The injunction would leave in place any other legal limitations on the City's use of hotel space for asylum seekers. 8 Likewise, the preliminary injunction would not grant the City all the relief it seeks in this lawsuit, nor would it be irreversible. See e.g. Suffolk Br. at 4, Onondaga Br. at 10. The Petition seeks vacatur of the EOs and a declaration that they are null and void, see Petition Wherefore clauses, but the preliminary injunction motion does not seek this relief. If Respondents prevail, the preliminary injunction would not prevent Respondents from enforcing their EOs going forward. " issue to restrain an EO that does not exist and is a nullity. Accordingly, while the City seeks a permanent injunction and declaration against these Respondents, and reserves the right to seek a preliminary injunction against them in the future if they revive their EOs, it withdraws its request for a preliminary injunction as to these expired EOs at this time. 8 Notably, temporary restraining or preliminary injunctions bar the City from using hotel space in certain of the Respondents' communities. -9- 12 of 56 FILED: NEW YORK COUNTY CLERK 07/20/2023 12:19 PM INDEX NO. 451368/2023 NYSCEF DOC. NO. 522 RECEIVED NYSCEF: 07/20/2023 B. The Venue Provisions of CPLR 6311 Do Not Bar a Preliminary Injunction Furthermore, contrary to Respondents, the venue provisions of CPLR 6311 do not apply here. Onondaga Br. at 6-7. Under CPLR 6311, a preliminary injunction to restrain a "public official" or "municipal corporation" from performing a "statutory duty" may only be granted "in the department in which the officer or board is located or in which the duty is required to be performed." However, the city is not seeking to enjoin Respondents from performing any duty conferred by statute. No statute authorizes, much less directs, Respondents to enforce EOs that prevent the City from addressing the asylum seekers crisis, a declared state-wide emergency, as authorized by the SSL. Indeed, as set forth in the City's moving papers and further below, Respondents' EOs are unlawful and unconstitutional. Where, as here, the validity and constitutionality of executive action is in question, CPLR 6311 does not apply. See Skelos v. Paterson, 65 A.D.3d 339, 345-346 (2d Dept. 2009), rev 'don other grounds, 13 N.Y.3d 141 (holding that where questions of venue under CPLR 6311 merged with merits of the preliminary injunction motion, 6311 did not apply). Moreover, to the extent Respondents seek to enforce the EOs, this enforcement would occur, at least in part, in New York County, as the City is located here, the asylum seeker crisis is centered here, and any impact of the enforcement would be felt here. CPLR 6311 does not prevent the court from granting a preliminary injunction. 9 9 Respondents' reliance on Bull v. Stichman, 189 Misc. 590 (Sup. Ct. Albany Cty. 1947) is misplaced. There, the plaintiff sought to restrain government officials from performing acts that were specifically authorized by state law and, in any event, the court found that the plaintiff did not state a cause of action. Id at 597. In Gallivan v. Cuomo, 71 Misc. 3d 589 (Supt. Ct. Erie Cty. 2021), rev'd on other grounds, 2021 N.Y. App. Div. LEXIS 2340, the court did not find, as Respondents contend, Onondaga Br. at 7, that preliminarily enjoining an executive order issued by the governor qualified as "attempting to restrain a public official." Rather, the court ~etermined that there was no CPLR 6311 issue because the State officials and agencies sought to be restrained - 10 - 13 of 56 FILED: NEW YORK COUNTY CLERK 07/20/2023 12:19 PM INDEX NO. 451368/2023 NYSCEF DOC. NO. 522 RECEIVED NYSCEF: 07/20/2023 C. The City Will Suffer Irreparable Injury Absent an Injunction Against Respondents' Unlawful EOs The City will suffer immediate, irreparable harm without a preliminary injunction. As detailed at length in the City's moving papers, the City has made extraordinary efforts to massively expand its ability to provide temporary housing assistance and accommodate tens of thousands of asylum seekers in locations within the City. MOL at 3-7. The City has now reached its breaking point, is over capacity, and, as authorized by the SSL and its supporting regulations, directives, and agency interpretations, must seek hotel space outside of its territory to provide asylum seekers temporary places to stay at the City's expense. Without an injunction, the City is unlawfully precluded from using hotel space in Respondents' communities, and accordingly, is unable to effectively address an on-going humanitarian emergency. Additionally, the harsh penalties and criminal sanctions in the EOs deter hotels from working with the City and agreeing to provide the space that is needed and available. Many Respondents do not address the irreparable harm the City is experiencing at all--or summarily dismiss it without elaboration, implicitly conceding that the City establishes this element of the preliminary injunction standard. However, several Respondents argue that the City cannot establish irreparable harm because it has not specifically pleaded that every hotel in the City is filled to capacity and that the City is full. See e.g. Niagara Br. at 21; Thirty-Four Respondent Br. at 13. This argument is meritless. The City's moving papers repeat ad nauseum that its shelters, hotels, and even alternative spaces (such as the Brooklyn Cruise Terminal) do not have available space. See e.g. Pet. ,r,r 1, 83, 90, 124; Rubin AffEx. P ,r 20 ("The City has reached the were domiciled in the county where the action was pending. See Gallivan v. Cuomo, 71 Misc. 3d at 593. - 11 - 14 of 56 FILED: NEW YORK COUNTY CLERK 07/20/2023 12:19 PM INDEX NO. 451368/2023 NYSCEF DOC. NO. 522 RECEIVED NYSCEF: 07/20/2023 limit on shelter capacity"); Shaeffer Aff. ,r,r 9 (describing temporary arrangements at "Randall's Island, the Brooklyn Cruise Terminal, previously vacant buildings, and at hotels."); 22 ("the City is over capacity."). Some Respondents further argue that the City has not established irreparable harm because it has not alleged that it is "precluded from placing migrants in all municipalities throughout New York State." Niagara Br. at 22, see also e.g. 34 Respondents Br. at 30. However, this assertion makes no sense: by Respondents' logic, until every single county in the State has barred the City from using hotels in its jurisdiction, there will be no irreparable harm to the City from being excluded from any specific county. Certain Respondents also argue that the City's claims of irreparable harm are not genuine because the City has been handling the asylum seekers crisis alone for eight months. Suffolk Br. at 4. But, this is precisely the point: the City has made every effort, in accordance with the SSL to provide emergency housing assistance to those found in its jurisdiction. It is only now, that it has run out of local capacity that, as a last resort, it is seeking to use hotels outside of its territory to provide temporary housing assistance. The City has established irreparable harm absent an injunction. D. The City Is Likely to Succeed on the Merits of Its Claims That Respondents' EOs Are Unlawful Contrary to Respondents, and as set forth in its opening brief and further below, the City is likely to prevail on the merits of its claims because it establishes that the EOs are not authorized by Executive Law 24, conflict with the SSL, conflict with state and federal anti-discrimination law, are conflict preempted by federal immigration law and violate the United States Constitution. Respondents also argue that the City lacks standing, that the lawsuit is moot, that the lawsuit is not - 12 - 15 of 56 FILED: NEW YORK COUNTY CLERK 07/20/2023 12:19 PM INDEX NO. 451368/2023 NYSCEF DOC. NO. 522 RECEIVED NYSCEF: 07/20/2023 justiciable, that the City failed to join a necessary party, and that the City fails to state a claim under Article 78. None of these arguments hold water. 1. The City Has Standing The City has standing to challenge Respondents' EOs because the EOs deliberately target the City and seek to prevent it from lawfully addressing the asylum seekers crisis. The City easily meets the two-part test for standing: the City demonstrates (1) '"injury in fact,' meaning that plaintiff will actually be harmed by the challenged ... action," and "the injury [is] more than conjectural"; and (2) "the injury ... fall[s] within the zone of interests or concerns sought to be promoted." N.Y State Ass 'n of Nurse Anesthetists v. Novello, 2 N.Y.3d 207, 211 (2004). Many of the Respondents' EOs expressly identify the City's actions as the reasons for issuing an EO and then announce schemes of prohibitions and civil and criminal remedies that are calculated to injure the City, its officials, and employees, or anyone who might work with them to help find temporary shelter for migrants or asylum seekers in their county. Other Respondents' EOs have slightly different wording but still expressly prohibit any "municipality" from contracting with local hotels to provide housing or accommodations to migrants or asylum seekers and/or prohibit local hotels form contracting with any 'external municipality" to provide housing for migrants or asylum seekers without a prior license. See Pet. ,r,r 112-113 & Exs. A-EE. And irrespective of variations in their drafting, all of the Respondents' EOs do more than obstruct the City from utilizing vacant hotel space in Respondents' communities to provide temporary housing assistance; they also deter hotels that might otherwise work with the City to provide such assistance. See Pet. ,r 114. There is no basis to shield the Respondents' EOs from judicial review, and the City, as a party with a genuine stake in challenging the EOs, clearly has standing to mount such a challenge. - 13 - 16 of 56 FILED: NEW YORK COUNTY CLERK 07/20/2023 12:19 PM INDEX NO. 451368/2023 NYSCEF DOC. NO. 522 RECEIVED NYSCEF: 07/20/2023 See Ass'nfor a Better Long Is., Inc. v. NY. State Dep't of Envtl. Conservation, 23 N.Y.3d 1, 6-7 (2014) ("[S]tanding rules 'should not be heavy-handed. Rather, we have been reluctant to apply these principles in an overly restrictive manner where the result would be to completely shield a particular action from judicial review.") (quotation omitted); Stevens v. New York State Div. of Criminal Justice Servs., 206 A.D.3d 88, 99 (1st Dep't 2022) ("The standing requirement, which is designed to ensure that the bearer of a lawsuit is one with a genuine stake in the litigation, should not serve as a technical barrier to review of administrative action."). The Respondents' standing challenges are baseless. a. The Respondents' EOs Injure the City in Fact The EOs injure the City in fact by prohibiting it from contracting to transport asylum seekers to the Respondents' counties and from contracting with local hotels to temporarily place asylum seekers in those counties, absent written permission from the counties. 10 Unfortunately, after many months of accommodating ever growing numbers of asylum seekers, the City has reached capacity and is at its breaking point. Pet. ,r 126. The City must use available, excess capacity in other jurisdictions to provide temporary placements for asylum seekers when it is needed, as authorized by the SSL. Respondents, through their EOs, have unlawfully barred the City from doing so, causing injury to the City as it seeks to find locations to temporarily house the expanding population of asylum seekers. See Pet. ,r,r 110-114 & Exs. A-EE; see also Bernhardt Reply Aff. ,r,r & Exs. 3-5. Respondents' EOs go further; they outline schemes of remedies and penalties, which the City will incur if it uses hotel space within the respective counties, including appearance tickets; 10 The EOs do not provide a mechanism for seeking written permission, and no such permission is required under the SSL or its implementing regulations, directives, or agency interpretations. - 14 - 17 of 56