FILED: NEW YORK COUNTY CLERK 12/22/ :05 PM INDEX NO /2015 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/22/2015

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1 FILED: NEW YORK COUNTY CLERK 12/22/ :05 PM INDEX NO /2015 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/22/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x CINDY VELEZ, DADO BERETE, DANIELA TEJADA and DOMINIQUE LOCHARD, -against- Plaintiffs, : SAMUEL ROBERTS, as Commissioner of the New : York State Office of Temporary and Disability : Assistance, 985 EAST 174 LLC, HARBOR : GARDEN ASSOCIATES, 2781 GRAND : CONCOURSE LLC, and WEST 128TH STREET, ASSOC., LP, Defendants x : : : : : : : Index No.: VERIFIED COMPLAINT FOR DECLARATORY RELIEF Plaintiffs Cindy Velez, Dado Berete, Daniela Tejada and Dominique Lochard ( Plaintiffs ), by and through their undersigned attorneys, Hughes Hubbard & Reed, LLP and The Legal Aid Society, bring this Verified Complaint For Declaratory Relief against the Commissioner of the New York State Office of Temporary and Disability Assistance, Samuel Roberts (the State Commissioner ), and in support thereof allege the following: PRELIMINARY STATEMENT 1. The shelter allowance is a form of cash assistance for needy families with minor children and is designed to prevent homelessness and destitution. To that end, section 350(a) of New York s Social Services Law requires the State to provide a shelter allowance that is adequate for a father, mother or other relative to bring up the child properly. 2. Plaintiffs are families with minor children residing in New York City and recipients of Family Assistance for whom the Commissioner of the New York State Office of

2 Temporary and Disability Assistance ( OTDA ) has failed to provide an adequate shelter allowance. As a result, Plaintiffs and other similarly situated families are at risk of becoming homeless. 3. In the landmark case of Jiggetts v. Grinker, 75 N.Y.2d 411 (1990), the Court of Appeals held that, to satisfy its statutory obligation to provide an adequate shelter allowance, the State must provide shelter allowances that bear a reasonable relation to the cost of housing in New York City. Id. at The State is failing to meet its obligation. The amounts of the shelter allowances currently in effect are based on data from 1999 through The State has not increased these amounts since the State adopted them in For example, the shelter allowance for a family of three is only $400 per month. Meanwhile during the past thirteen years, rents have gone up dramatically in New York City, and the number of affordable apartments has dwindled. The allowances simply do not bear a reasonable relationship to the costs of housing in New York City. 5. The shelter allowances for each social services district, including the City of New York, are set through regulation by the Commissioner of the Office of Temporary and Disability Assistance. 6. The City of New York has no control over the shelter allowances. 7. Short of amending the Social Services Law, the New York State Legislature has no control over the shelter allowances. 8. In 2004, in recognition of the inadequacy of the shelter allowance, the State approved a supplement called the Family Eviction Prevention Supplement ( FEPS ). This 2

3 supplement is available only in limited circumstances when a family has been sued in housing court for eviction. Because of restrictions on eligibility for the FEPS supplement, many recipients of Family Assistance including those who are victims of domestic violence, who live in overcrowded apartments, or who live in unsafe apartments are ineligible to receive a FEPS supplement and only receive the basic shelter allowance. 9. Like the adjustments made to the shelter allowance in 2003, the FEPS amounts approved in 2004 were also based on data from 1999 through The FEPS supplements have not been increased or updated since Upon information and belief, in 2015, the New York State Office of Temporary and Disability Assistance denied a request by the City of New York to increase the FEPS supplement amounts. 12. Moreover, families are ineligible to receive FEPS if their monthly rents exceed a certain rent level based on household size, which the State also approved in 2004 (the rent cap ). In 2004, the rent cap was set at $100 above the combined shelter allowance and FEPS supplement. The rent cap was raised modestly in 2009 to $150 to $300 above the combined shelter allowance and FEPS supplement, depending on family size. However, the actual supplement was not increased at all, so raising the rent cap six years ago has not helped families who do not have additional sources of income. Even for those families who do have additional sources of income, the need to make up the gap between the FEPS supplement level and the rent cap forces them to spend an inordinate percentage of their very limited income on shelter. And today the rent cap is well below the cost of available housing for Plaintiffs. Thus, three of the 3

4 Plaintiffs are ineligible for the FEPS supplement in its entirety because of this rent cap, and must rely solely on the grossly inadequate shelter allowance. 13. With or without FEPS, however, the State is failing its obligation to Plaintiffs. Rent levels in New York City have risen steadily in the past decade and the current shelter allowance, FEPS levels, and FEPS rent caps have become so out of touch with the reality of today s rental market conditions that they violate section 350(a) of New York s Social Services Law. 14. For example, the Fair Market Rent (a figure determined on an annual basis by the United States Department of Housing and Urban Development for specific geographic areas) for a two-bedroom apartment in the area that includes New York City for 2016 is $1,571. See FY 2016 Final Fair Market Rents for Existing Housing, 80 Fed. Reg , (Dec. 11, 2015). 15. Under the current scheme, a family of three would only be eligible for a shelter allowance of $400, more than $1,100 less than the 2016 Fair Market Rent in New York City for a two-bedroom apartment. Compare 18 N.Y.C.R.R (a)(1) with FY 2016 Final Fair Market Rents for Existing Housing, 80 Fed. Reg , If the family of three also qualified for FEPS, then they would be eligible for an additional $450 for a total of $850. See Letter from Robert Doar, Comm r, N.Y. State Office of Temp. and Disability Assistance, to Verna Eggleston, Comm r, N.Y.C. Human Res. Admin., and Linda Gibbs, Comm r, N.Y.C. Dep t of Homeless Servs. (Dec. 9, 2004) (Ex. A). 17. However, there is still a monthly gap of approximately $721 between the Fair Market Rent for a two-bedroom apartment in New York City and the combination of the maximum shelter allowance and FEPS subsidy available to help a family of three avoid eviction. 4

5 The combination of the shelter allowance and FEPS total only 55% of the Fair Market Rent levels. 18. Compounding the problem, a family of three would not even qualify for a single dollar of FEPS if its monthly rent exceeds $1,050, which is $521 less than the 2016 Fair Market Rent for a two-bedroom apartment in New York City. 19. If a family is ineligible for FEPS because their rent exceeds the rent cap or for any other reason, the gap between the Fair Market Rent for a two-bedroom apartment in New York City and the maximum shelter allowance that a family of three is eligible to receive rises back to $1, Thus, the shelter allowance, either alone or in combination with FEPS, is insufficient to meet Plaintiffs rent requirements, and as a result, Plaintiffs and other similarly situated families face homelessness. 21. The Defendant State Commissioner has therefore violated the Social Services Law of New York by failing to provide an adequate shelter allowance. 22. Furthermore, neither the State Commissioner nor his predecessors ever submitted the FEPS levels or rent caps for notice and comment pursuant to the State Administrative Procedure Act ( SAPA ). 23. The State therefore implemented the FEPS levels and rent caps in violation of SAPA. 24. The State Commissioner must increase the overall shelter allowance by raising the basic shelter allowance, or by raising both shelter allowance and FEPS levels to reflect current rental market conditions in New York City because: 5

6 a) The shelter allowance, either alone or in combination with FEPS, violates section 350(1)(a) of the Social Services Law, which provides that [a]llowances shall be adequate to enable the father, mother or other relative to bring up the child properly and [a]llowances shall provide for the support, maintenance and needs of one or both parents if in need, and in the home.... (emphases added); and b) The State Commissioner has violated the State Administrative Procedure Act by failing to submit the FEPS levels and rent caps for notice and comment. 25. Accordingly, Plaintiffs bring this action pursuant to section 3001 of the New York Civil Practice Law and Rules, and seek a declaration that: a) The Commissioner of the New York State Office of Temporary and Disability Assistance has violated New York Social Services Law by failing to provide an adequate shelter allowance to Plaintiffs and other similarly situated families with children residing in New York City who receive Family Assistance; b) The shelter allowance is inadequate unless the State Commissioner increases the overall shelter allowance by raising the basic shelter allowance, or by raising both the shelter allowance and FEPS levels to match the Fair Market Rents for New York City apartments, as calculated by the Department of Housing and Urban Development; c) The present FEPS levels and rent caps are null and void unless and until the State Commissioner lawfully promulgates the FEPS subsidy levels and rent cap levels in compliance with the State Administrative Procedure Act; and d) Plaintiffs applications for FEPS be accepted and a supplement provided up to the Fair Market Rent, pending Defendant Commissioner Roberts promulgation of new final rules pursuant to SAPA setting forth an adequate shelter allowance. PARTIES 26. Defendant Samuel Roberts is the Commissioner of the New York State Office of Temporary and Disability Assistance. Defendant Roberts maintains an office at 317 Malcolm X Boulevard, No. 8, New York, NY

7 27. Plaintiff Cindy Velez is a mother of a three-year-old child. She has lived at th Street, Apt. 3E, Bronx, New York for the last two years with her son. 28. Plaintiff Velez receives a basic shelter allowance of $283 per month, but her current monthly rent is $945. Her only source of income is cash assistance and, as a result, she has been unable to pay her monthly rent. 29. Plaintiff Velez was sued by her landlord in September 2015 for rent due from June 2015 to September She is ineligible to receive the FEPS supplement because her rent exceeds the $900 monthly rent cap for a family of two people by $45. See FEPS Family Eviction Prevention Subsidy, available at /housing-guide/a/2 (last visited Dec. 21, 2015). As a result, she is currently in eviction proceedings. 30. Because Plaintiff Velez has no family in New York and has nowhere else to stay, she and her three-year-old son would have to enter the New York City shelter system if the City Marshal were to evict them. Thus, being evicted from their apartment would be devastating to Plaintiff Velez and her son. 31. Plaintiff Dado Berete is a mother of an infant son. She has lived at 100 Stuyvesant Place, R1, Staten Island, New York for the last eight years. 32. Plaintiff Berete receives a basic shelter allowance of $283. Her current monthly rent is $ Presently, her only source of income is cash assistance and, as a result, she has been unable to pay her monthly rent. 1 Although the eviction proceeding was filed against Plaintiff Cindy Velez s former boyfriend and roommate, Terrance Lawrence, the landlord agreed to grant succession rights to Ms. Velez s son and to give Ms. Velez a new lease as guardian for her minor son. Mr. Lawrence has left the apartment and is no longer a party to the housing court case. Thus, Ms. Velez is now the respondent in the eviction proceeding pending in Housing Court. 7

8 33. Plaintiff Berete was sued by her landlord in August 2015 for rent due from May, and she agreed to pay the back rent by November 8, She applied for FEPS seeking payment of the back rent and an ongoing shelter supplement, but was denied because her rent exceeds the $900 monthly rent cap for a family of two people by $ See FEPS Family Eviction Prevention Subsidy, available at (last visited Dec. 21, 2015). As a result, she is currently in eviction proceedings. 34. Plaintiff Berete and her son do not have family in New York and have nowhere to stay if evicted. She and her infant son would also have to enter the New York City shelter system if the City Marshal were to evict them. 35. Plaintiff Daniela Tejada is a mother of two daughters, ages five-years-old and seventeen-months-old. She has lived at 2791 Grand Concourse, Apt. 402, Bronx, New York for the last nine months with her daughters. 36. Plaintiff Tejada receives a shelter allowance of $339 per month, 2 but her current monthly rent is $1, Plaintiff Tejada was sued by her landlord in August 2015 for rent due from June 2015 to August She is ineligible to receive the FEPS supplement because her rent exceeds the $1,050 monthly rent cap for a family of three people by $250. See FEPS Family Eviction Prevention Subsidy, available at (last visited Dec. 21, 2015). As a result, she is currently in eviction proceedings. 2 Plaintiff Daniela Tejada should be receiving the basic shelter allowance of $400 per month. Her cash assistance is incorrectly budgeted, but should soon be updated to reflect the accurate basic shelter allowance. 8

9 38. Because Plaintiff Tejada has no family in New York and has nowhere else to stay, she and her five-year old and seventeen-month old daughters would have to enter the New York City shelter system if the City Marshal were to evict them. 39. Plaintiff Lochard lives in apartment 505 at 25 W. 128th Street, New York, NY with her 11-year old daughter. She has lived in this rent-stabilized apartment for nearly seven years, since January Her monthly rent is $ under a lease running from February 1, 2015, through January 31, Though her monthly rent is $928.33, she and her daughter receive $283 a month for shelter allowance. 41. Plaintiff Lochard currently receives FEPS, which together with the shelter allowance covers $ of her monthly rent, which is still more than $300 less than her rent. 42. Ms. Lochard was sued by her landlord in September 2015 for rent due from July to September The landlord is incorrectly suing Ms. Lochard as if she had signed a 2-year renewal lease, even though she chose and signed a one-year lease; as such the numbers on the landlord s papers are mistaken to that extent. 43. If Ms. Lochard and her daughter are evicted from their home, they cannot afford to rent another apartment. 44. She has looked in the newspapers and online for apartments like hers, but they are more expensive than her current rent (and the maximum rent level eligible for FEPS subsidies). 45. Although Ms. Lochard has family living in New York, her mother and sister share a one-bedroom apartment, leaving no room for Ms. Lochard and her daughter. She and her daughter would have to enter the New York City shelter system if the City Marshal evicted them. 9

10 46. Defendant 985 East 174 LLC is the landlord for Plaintiff Cindy Velez. Defendant maintains an office at 381 Park Avenue South, Floor 15, New York, NY Defendant Harbor Garden Associates is the landlord for Plaintiff Dado Berete. Defendant maintains an office at 285 St. Mark s Place, Staten Island, NY Defendant 2781 Grand Concourse LLC is the landlord for Plaintiff Daniela Tejada. Defendant maintains an office at 41 West Putnam Avenue, Greenwich, CT Defendant West 128th Street, Assoc., LP is the landlord for Plaintiff Dominique Lochard. Defendant maintains an office at 902 Broadway, 13th Floor, New York, NY STATEMENT OF FACTS Shelter Allowances In New York State 50. New York Social Services Law requires the State to provide a shelter allowance that permits a father, mother or other relative to bring up the child properly. N.Y. Soc. Serv. Law 350(1)(a). In Jiggetts v. Grinker, the Court of Appeals required the State to provide shelter allowances that bear a reasonable relation to the cost of housing in New York City. 75 N.Y.2d 411, 415 (1990). 51. In 2003, in response to Jiggetts, the State promulgated a regulation setting forth a shelter allowance schedule for each social services district in New York State, effective November See 18 N.Y.C.R.R (a). 52. In order to be eligible to receive a basic family shelter allowance, an applicant must live with minor children and receive cash assistance. 10

11 53. Families with minor children are currently eligible to receive the following shelter allowances based on their household size: Household Size $277 $283 $400 $450 $501 $524 $546 $ N.Y.C.R.R (a)(1). 54. The State based these shelter allowances on data from 1999 through 2002 and adopted these levels in The State has not updated the amount of the shelter allowances since it adopted them. The Family Eviction Prevention Supplement 55. The regulations that created the revised shelter allowance schedule also permitted OTDA to approve proposals by local social services districts to provide an additional monthly shelter supplement to families with children who are public assistance applicants or recipients and who will reside in private housing. 18 N.Y.C.R.R (a)(3)(i). 56. Pursuant to 18 N.Y.C.R.R (a)(3), the New York City Human Resources Administration ( HRA ) submitted FEPS, its plan for a shelter allowance supplement, to the former State Commissioner. 57. In December 2004, former State Commissioner Robert Doar approved FEPS. See Letter from Robert Doar, Comm r, N.Y. State Office of Temp. and Disability Assistance, to Verna Eggleston, Comm r, N.Y.C. Human Res. Admin. and Linda Gibbs, Comm r, N.Y.C. Dep t of Homeless Servs. (Dec. 9, 2004) (Ex. A). This plan included a schedule of the maximum combined shelter allowance and FEPS subsidies: 11

12 Household Size $650 $750 $850 $900 $1,000 $1,050 $1,100 $1,200 *$50 for each additional family member Id. 58. According to the 2004 approval, per the rent cap, a family was only eligible for FEPS if, among other things, its rent did not exceed the maximum combined shelter allowance and FEPS subsidy by more than $100. Id. at In 2009, the State approved an increase of the rent caps, but a family is only eligible for FEPS if, among other things, the rent is no greater than $150-$300 more than the maximum combined shelter allowance and FEPS subsidy, depending on household size. See Letter from Robert Hess and Robert Doar, to David Hansell, Comm r, N.Y. State Office of Temp. and Disability Assistance (Mar. 25, 2009) (Ex. B). 60. The State approved the current FEPS subsidy levels and rent caps based on data from 1999 through While presiding over the Jiggetts litigation, Justice Karla Moskowitz concluded that, based on data from 2003, the combined basic shelter allowance and FEPS supplement were adequate at that time. See Jiggetts v. Dowling, No /1987, 2007 WL (N.Y. Sup. Ct., N.Y. Cnty. Dec. 21, 2007). 62. The State, however, has not approved updated FEPS subsidy levels since N.Y.C.R.R (a)(3) was subject to a notice and comment period pursuant to New York s State Administrative Procedure Act ( SAPA ), and was published in the New York State Register. See XXV N.Y. Reg., Issue 8 (Feb. 26, 2003); XXV N.Y. Reg., Issue 31 (Aug. 6, 2003). The Notice of Adoption for 18 N.Y.C.R.R (a)(3) was published in the 12

13 New York State Register with an effective date of November 1, See XXV N.Y. Reg., Issue 31 (Aug. 6, 2003). 64. The State never included the FEPS levels and rent caps, however, in the language of the regulation and never published the levels in the New York State Register. 65. The FEPS levels and rent caps therefore escaped notice and comment altogether, in violation of SAPA. Current Rental Housing Market In New York City 66. As explained above, the State has not updated the amount of the basic shelter allowance and FEPS subsidies since the State approved them over a decade ago, in 2003 and Moreover, in November 2014, in response to a Freedom of Information Law request, the OTDA represented that it was unable to locate any data, studies, or other information that it used to assess the adequacy of the shelter allowances. Letter from Allison Welsh, Attorney at OTDA, to Sebastian Riccardi, Staff Attorney at the Legal Aid Society (Nov. 3, 2014) (Ex. C). 68. Since the State first approved the current shelter allowances, rent levels in New York City have increased dramatically. 69. Indeed, in June 2015, Governor Andrew Cuomo wrote in the New York Daily News that the crisis of affordability is back with a vengeance.... Rising rent costs are taking an increasingly high toll on New York City residents. In 2012, roughly 55% of the city s residents were spending more than 30% of their gross annual income on rent, and 30% of New York City s renters were spending more than half of their gross annual income on rent. Andrew 13

14 Cuomo, Op-Ed., My Affordable Housing Agenda: Gov. Cuomo Lays Out His Plan to Keep Rents in Line With What New Yorkers Can Pay, N.Y. Daily News, June 6, 2015, (emphasis added) (Ex. D). 70. Statistics from the United States Department of Housing and Urban Development ( HUD ) likewise confirm that Fair Market Rents in New York City have increased since The Fair Market Rent ( FMR ) is determined on an annual basis by HUD for a specific geographic area. In general, the FMR for an area is the amount that would be needed to pay the gross rent (shelter rent plus utilities) of privately owned, decent, and safe rental housing of a modest (non-luxury) nature with suitable amenities is typically set at the 40th percentile of the distribution of gross rents. FY 2016 Final Fair Market Rents for Existing Housing, 80 Fed. Reg , The Fair Market Rent for a two-bedroom apartment in New York City in 2003 was $1,031 and for 2016 it is $1,571, an increase of over 50 percent. Compare Fair Market Rents for Existing Housing, 67 Fed. Reg , (Sept. 30, 2002) with FY 2016 Final Fair Market Rents for Existing Housing, 80 Fed. Reg , The Fair Market Rent for a three-bedroom apartment in 2003 was $1,289 and is $2,021 for 2016, also an increase of over 50 percent. Compare Fair Market Rents for Existing Housing, 67 Fed. Reg , with FY 2016 Final Fair Market Rents for Existing Housing, 80 Fed. Reg , A shelter allowance approximating the Fair Market Rent unlike the current shelter allowance and FEPS levels would bear a reasonable relationship to the costs of housing in New York City. 14

15 FIRST CAUSE OF ACTION (Violation of the Social Services Law) 74. Plaintiffs repeat the allegations contained in paragraphs 1 through 73 as if fully set forth herein. 75. In maintaining and implementing the current basic shelter allowance and FEPS levels, the State Commissioner has violated the Social Services Law. 76. Section 350(1)(a) of the Social Services Law provides, [a]llowances shall be adequate to enable the father, mother or other relative to bring up the child properly and [a]llowances shall provide for the support, maintenance and needs of one or both parents if in need, and in the home.... (emphases added). 77. The adequacy requirement under section 350 of the Social Services Law applies to Plaintiffs and other recipients of Family Assistance. 78. Families with minor children who qualify for the shelter allowance are currently eligible to receive the following monthly shelter allowances based on their household size: Household Size $277 $283 $400 $450 $501 $524 $546 $ N.Y.C.R.R (a)(1). 79. If a family with minor children living in New York City is eligible to receive both the basic shelter allowance and FEPS subsidy, then they may receive the following maximum combined monthly allowance based on household size: Household Size $650 $750 $850 $900 $1,000 $1,050 $1,100 $1,200 *$50 for each additional family member 15

16 Letter from Robert Doar, Comm r, N.Y. State Office of Temp. and Disability Assistance, to Verna Eggleston, Comm r, N.Y.C. Human Res. Admin., and Linda Gibbs, Comm r, N.Y.C. Dep t of Homeless Servs. (Dec. 9, 2004) (Ex. A). 80. But a family is ineligible to receive a single dollar of the FEPS supplement if its rent exceeds the maximum combined basic shelter allowance and FEPS subsidy for the family size by more than $150 to $300, depending on household size. 81. The basic shelter allowance and FEPS supplement levels are based on stale data from 1999 to 2002, e.g., data that is between 13 and 16 years old. 82. The amounts of the basic shelter allowance and the FEPS supplement levels have not been updated since they were approved in 2003 and 2004, respectively. 83. Meanwhile, rent levels in New York City have risen steadily in the past decade. 84. The shelter allowance, either alone or in combination with FEPS, is below the current Fair Market Rent for New York City. 85. For example, a family of two may be eligible for $750 in combined basic shelter allowance and FEPS; however the Fair Market Rent for a two-bedroom apartment in New York City for 2016 is $1,571. See FY 2016 Final Fair Market Rents for Existing Housing, 80 Fed. Reg , Moreover, Plaintiffs are unable to find adequate housing at or below the FEPS rent cap. So, in fact, most are only eligible to receive the basic shelter allowance. 87. For example, Plaintiff Velez only receives $283 for a monthly shelter allowance for her one-bedroom apartment that she shares with her three-year old son and is unable to receive FEPS because the monthly rent for her apartment exceeds the $900 rent cap by $45. 16

17 88. Plaintiff Velez has attempted to seek another apartment, but has been unable to find an apartment that is below the rent cap. She will be compelled to enter the New York City shelter system because the State has failed to provide her with a shelter allowance that is reasonably related to the cost of housing in New York City. 89. Similarly, Plaintiff Berete was denied FEPS because her monthly rent for her onebedroom apartment exceeds the $900 rent cap by $ Therefore, she currently only receives a monthly shelter allowance of $ Despite attempts to seek another apartment, Plaintiff Berete was unable to find an apartment similar to hers that was below the rent cap; rather most of the apartments were much more expensive. Without a shelter allowance reasonably related to the cost of housing in New York City, she and her infant son will also be forced to enter the New York City shelter system. 91. Plaintiff Tejada is only eligible to receive $400 per month of shelter allowance for her and her two daughters, and is unable to receive FEPS because her monthly rent exceeds the $1,050 rent cap for a family of three by $ Despite her attempts to search for a new apartment, Plaintiff Tejada has also been unable to find an apartment that is below the rent cap. Because the State has failed to provide her with a shelter allowance that is reasonably related to the cost of housing in New York, Plaintiff Tejada and her daughters will also be forced to enter the New York City shelter system. 93. On the other hand, Plaintiff Lochard receives both the basic shelter allowance and FEPS, but the allowances are still insufficient to pay her monthly rent. She too has been unable to find an apartment that she can afford with the inadequate combination of the shelter allowance and FEPS. Due to the State s failure to provide her with a shelter allowance that is reasonably 17

18 related to the cost of housing in New York, Plaintiff Lochard and her daughter will also be forced to enter the New York City shelter system. 94. Because Defendant State Commissioner continues to implement a basic shelter allowance and FEPS levels that are grossly inadequate, far below the current Fair Market Rent in New York City, and not reasonably related to the actual cost of housing, the State Commissioner has violated section 350 of the Social Services Law of New York. 95. As a result of the foregoing, Plaintiffs and similarly situated families in danger of becoming homeless have faced and will continue to face irreparable harm and have no adequate remedy at law. forth herein. SECOND CAUSE OF ACTION (Violation of the State Administrative Procedure Act) 96. Plaintiffs repeat the allegations contained in paragraphs 1 through 95 as if set 97. The FEPS subsidy levels and rent caps are null and void because they were promulgated in violation of the State Administrative Procedure Act ( SAPA ). See N.Y. A.P.A. Law. 98. For purposes of SAPA, a rule is the whole or part of each agency statement, regulation or code of general applicability that implements or applies law. N.Y. A.P.A. Law 102(a). 99. The FEPS subsidy levels and rent caps discussed above apply without regard to the facts or circumstances of an individual case The FEPS subsidy levels and rent caps are therefore rules under SAPA. 18

19 101. SAPA provides that [p]rior to the adoption of a rule, an agency shall submit a notice of proposed rule making to the secretary of state for publication in the state register and shall afford the public an opportunity to submit comments on the proposed rule. N.Y. A.P.A. Law 202(1)(a) Although the regulation (18 N.Y.C.R.R (a)(3)) which permitted each local social service district to submit a plan to the State Commissioner for a housing supplement in addition to the basic shelter allowance did go through SAPA s notice and comment procedure, the State Commissioner approved the FEPS subsidy levels and rent caps without notice and comment as required by SAPA The FEPS subsidy levels and rent caps are therefore void As a result of the foregoing, Plaintiffs and similarly situated families in danger of becoming homeless face and will continue to face irreparable harm and have no adequate remedy at law. declaring that: WHEREFORE, Plaintiffs respectfully request that this Court enter judgment a) The Commissioner of the New York State Office of Temporary and Disability Assistance has violated New York Social Services Law by failing to provide an adequate shelter allowance to Plaintiffs and other similarly situated families with children residing in New York City who receive Family Assistance; b) The shelter allowance is inadequate unless the State Commissioner increases the overall shelter allowance by raising the basic shelter allowance, or by raising both shelter allowance and FEPS to match the Fair Market Rents for New York City apartments, as calculated by the Department of Housing and Urban Development; c) The present FEPS levels and rent caps are null and void unless and until the State Commissioner lawfully promulgates the FEPS subsidy levels and rent cap levels in compliance with the State Administrative Procedure Act; 19

20 d) Plaintiffs applications for FEPS be accepted and a supplement provided up to the Fair Market Rent, pending Defendant Commissioner Roberts promulgation of new final rules pursuant to SAPA setting forth an adequate shelter allowance; e) Award Plaintiffs attorneys fees and costs pursuant to the Equal Access to Justice Act ( EAJA ), Civil Practice Law and Rules, Article 86; and f) for such other and further relief as may be just and equitable. Dated: New York, New York December 22, 2015 HUGHES HUBBARD & REED LLP By: /s/ Michael D. Tiger Michael D. Tiger John M. Lyons One Battery Park Plaza New York, New York (212) THE LEGAL AID SOCIETY Seymour W. James Attorney-in-Chief Adriene Holder, Attorney-in-Charge, Civil Practice Judith A. Goldiner Attorney-in-Charge, Law Reform Unit, Civil Practice Kenneth R. Stephens Supervising Attorney, Law Reform Unit, Civil Practice Susan C. Bahn, of Counsel John Paul Jack Newton, of Counsel 199 Water Street, 3d Floor New York, New York (212) Attorneys for Plaintiffs 20

21 TO: CLERK OF THE COURT New York County 60 Centre Street New York, New York ERIC T. SCHNEIDERMAN Attorney General of the State of New York 120 Broadway, 24th Floor New York, New York E. 174, LLC 381 Park Avenue South, Floor 15 New York, New York HARBOR GARDENS ASSOCIATES 285 St. Marks Place Staten Island, New York GRAND CONCOURSE LLC 41 West Putnam Avenue Greenwich, CT WEST 128TH STREET, ASSOC., LP 902 Broadway, 13 th Floor New York, NY

22 Cindy Velez, being duly sworn, deposes and says that deponent is a Plaintiff in this action and has read this complaint; deponent knows its content and knows that, as to the facts alleged regarding deponent, they are true to the best of deponent's knowledge, except as to those matters stated to be upon information and belief, and as to those matters deponent believes them to be true. Cindy Velez S%'Ortl to bcfot'0 BlC 'tllis ( tibq of December, NOTARY PUBLIC ST~" TV.'OF NVW YORK. KAWLEEM MFYER8 NofBQ PUI3llC. 843fB Gf MgwV04 Mo. OBv/F GUGJfflGCf N NB% VGl.k COUf1f ( g CCfBPNSSIQA ~pjp83," Q s: Ugust 6, 29~I

23 Dado Berete, being duly sworn, deposes and says that deponent is a Plaintiff in this action and has read this complaint; deponent knows its content and knows that, as to the facts alleged regarding deponent, they are true to the best of deponent's knowledge, except as to those nlattcl's stated to bc upon lnfolltlatlon ancl bcllcf, and as to tl'lose n1atters deponent believes thelrl to be true. Dado 8 e Sworn to bcfolc ITlc this 2ncl clay of December, 2015.

24 Daniela Tejada, being duly sworn, deposes and says that deponent is a Plaintiff in this action and has read this complaint; deponent knows its content and knows that, as to the facts alleged regarding deponent, they are true to the best of deponent's knowledge, except as to those matters stated to be upon information and belief, and as to those matters deponent believes them to be true. Danlela TeJada SwotTt to before me this 16th day of December, MMKEN MOB Not~ Public, State of New VM No. 62M E Qualified in New York Counttr. Mrnrntssion + ~iree: ~ust 6, &

25 Dominique Lochard, being duly sworn, deposes and says that deponent is a Plaintiff in this action and has read this complaint; deponent knows its content and knows that, as to the facts alleged regarding deponent, they are true to the best of deponent's knowledge, except as to those matters stated to be upon information and belief, and as to those matters deponent believes them to be true. Dominique Lochard lx1 Sworn to before me this I & day of December, 201S. ~~::/(c'. NOTARY P FLIC STATE OF NEW YORK