Opinion
Index No. 824/23
03-06-2024
JAIME WILLIAMS, et al., Petitioners/Plaintiffs v. THE STATE OF NEW YORK, KATHY HOCHUL GOVERNOR OF THE STATE OF NEW YORK, THE CITY OF NEW YORK, ERIC L. ADAMS, MAYOR OF THE CITY OF NEW YORK, Respondents/Defendants.
Unpublished Opinion
PRESENT: HON. PETER P. SWEENEY
Peter P. Sweeney, Judge
The following e-filed papers read herein: NYSCEF Doc Nos.:
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed ...........6, 8-18, 23, 25-36, 43-51
Opposing Affidavits (Affirmations) ...................................................................................................................___
Affidavits/ Affirmations in Reply .......................................................................................................................39-42, 54
Other Papers: Memoranda of Law ....................................................................................................................7, 22, 37, 38, 53
On September 19, 2023, petitioners/plaintiffs (hereinafter, petitioners) filed a petition and order to show cause in Richmond County Supreme Court. This hybrid proceeding brought pursuant to CPLR Article 78 and declaratory judgment action brought pursuant to CPLR 3001, challenges respondents/defendants Mayor Eric L. Adams (Mayor Adams) and the City of New York's (the City) (collectively, City respondents) use of a portion of Floyd Bennett Field as an emergency shelter for migrant asylum seekers and respondents/defendants Governor Kathy Elochul (Governor Hochul) and the State of New York's (State respondents) use of State funding to reimburse certain costs related to this project. An amended petition was filed on October 19, 2023, and shortly thereafter on October 31, 2023, the City respondents filed a motion to transfer venue to Kings County. On November 9, 2023, the parties entered into a so-ordered stipulation to transfer this matter to Kings County. On December 11, 2023, the State respondents filed a motion to dismiss the amended petition as against the State respondents. On that same date, the City respondents filed a cross motion to dismiss the amended petition as against the City respondents. This court heard oral arguments and reserved decision on January 18, 2024.
Petitioners/plaintiffs are 15 elected officials representing districts in Brooklyn, Queens, and Staten Island, as well as 24 residents, electors and taxpayers residing in those three boroughs.
Floyd Bennett Field is part of the Gateway National Recreation Area located in Brooklyn and operated by the National Park Service (NPS).
Background
In April 2022, New York City began experiencing a significant influx of migrant asylum seekers arriving from the southern border of the United States. Between April 2022 and November 2023, more than 100,000 individuals have arrived seeking emergency shelter and assistance from the New York City Department of Homeless Services, placing a strain on the City's shelter system.
On October 7, 2022, Mayor Adams issued Emergency Executive Order Number 224 ("EEO 224") declaring that a state of emergency exists within the City of New York "based on the arrival of thousands of individuals and families seeking asylum." EEO 224 specifically directed City agencies to establish and operate temporary humanitarian relief centers that would provide immediate respite and sleeping accommodations as well as food, medical care, case work services, and other services to arriving asylum seekers. It further suspended various provisions of New York City laws and rules related to the siting, construction, and operation of temporary facilities to ensure such sites were up and running as quickly as possible. On October 12, 2022, Mayor Adams issued EEO 230 which suspended additional requirements related to the siting of temporary humanitarian relief centers, including the City Zoning Resolution "to the extent that [it] would prevent the alteration and/or use of buildings as temporary humanitarian relief centers."
On May 9, 2023, Governor Hochul issued Executive Order 28 (State EO 28), which declared a State Disaster Emergency noting that "the arrival of increased numbers of migrants seeking shelter in the City and State of New York is expected to exacerbate an already large-scale humanitarian crisis and create a disaster emergency to which local governments are unable to adequately respond, creating a threat to health and safety, which could result in the loss of life or property." In addition, State EO 28 authorized "State agencies ... to take appropriate action to protect State property and to assist affected local governments and individuals in responding to and recovering from" the crisis.
This proceeding/action arises out of the following actions taken by the City and State respondents in relation to the housing of the migrant asylum seekers. On September 15, 2023, the City respondents entered into a one-year lease (the Lease) with the National Park Service (NPS) for four parcels of land located in the Jamaica Bay Unit of the Gateway National Recreation Area, known as Floyd Bennett Field. The City respondents erected five large tent structures at the site to be used as a short-term emergency facility to house approximately 2,000 asylum seekers. On this same date, the City respondents entered into an agreement with the State respondents pursuant to which the latter agreed to pay all rent obligations associated with the Lease (the Reimbursement Agreement).
The National Park Service is a bureau within the United States Department of Interior.
Parties' Contentions
Petitioners seek to enjoin the respondents from continuing to operate the temporary emergency shelter facility for migrant asylum seekers at Floyd Bennett Field; and seek declaratory relief and a determination that both the City and State respondents' (collectively, respondents) actions were arbitrary and capricious. Petitioners contend that: the lease for the use of protected federal lands is improper; the requisite hearings and administrative processes for transfer of the subject lands to the City have not been completed; and that respondents have not complied with New York or federal laws governing the use of these protected lands. Specifically, they assert that respondents have failed to comply with the National Environmental Policy Act (NEPA), the State Environmental Quality Review Act (SEQRA); the City's Uniform Land Use Review Procedure (ULURP) and City zoning regulations. Petitioners further assert that respondents' actions violate the terms of the New York State Constitution, specifically Article 1, § 1 and Article XVII, §1. In addition, they contend that the Executive Orders issued are unconstitutional and improper under the Executive Law.
To the extent that petitioners seek injunctive relief in their amended petition, the court notes that they did not seek a temporary restraining order and fail to raise any arguments in regard to their request for a preliminary injunction in opposition to either the State or City respondents' motion and cross motion to dismiss or in their affirmation in further support of the amended petition.
Article 1, § l of the New York State (NYS) Constitution provides in pertinent part that "No member of this state shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his or her peers ..."
Article XVII, §1, of the NYS Constitution provides that "The aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature may from time to time determine."
The State respondents move to dismiss the amended petition as against them. At the outset, they assert that the State is not a proper party to an Article 78 proceeding. Next, the State respondents argue that the petition should be dismissed pursuant to CPLR 3211 (a) (3) and (a) (7), as petitioners lack standing to pursue their claims as they do not allege an injury-in-fact and their alleged harms fall outside the zone of interests protected by the environmental statutes they cite; and have failed to state a cause of action against the State v respondents. The State respondents further argue that petitioners fail to demonstrate that their conduct violated the Gateway Act, NEPA, Federal HUD regulations, SEQRA, the State Constitution, the Executive Law, or any New York City zoning laws. Moreover, they argue that the decision to reimburse the costs related to the Lease for the Floyd Bennett Field site has a rational basis.
The City respondents cross-move for a judgment pursuant to CPLR 3211 (a) (3), (a) (7), (a) (10) and 7804 (f), dismissing the amended petition and denying petitioners' application for preliminary injunctive relief. The City respondents argue that the petition should be dismissed as petitioners lack standing, failed to state a cause of action and failed to join a necessary party. They further assert that the City respondents' determination to develop a temporary emergency shelter for asylum seekers at Floyd Bennett Field was rational and does not violate any statute, regulation or constitutional provision.
Discussion
Standing
The State and City respondents both move to dismiss the instant petition pursuant to CPLR 3211 (a) (3), arguing that petitioners lack standing. In so moving, respondents argue that the petitioners have failed to meet their threshold burden of establishing that they suffered an injury-in-fact, and further failed to demonstrate that the interests they assert are within the zone of interest to be protected by the statutes which were allegedly violated. As to the injury-in-fact argument, the State respondents maintain that the petitioners' contention that using Floyd Bennett Field to house migrants will "likely" lead to higher taxes is speculative and hypothetical and, in any event, relevant caselaw holds that the mere potential for higher taxes does not confer standing. In addition, the City respondents argue that petitioners' allegations that they will be deprived of essential services and environmental injuries are also speculative and fail to set forth a harm that is particular to the petitioners that is distinct from the impact on the public at large. The City and State respondents also note that none of the petitioners claim that they live in close proximity to Floyd Bennett Field so as to entitle them to an inference of injury, and therefore their contention that use of Floyd Bennett Field as an emergency shelter may impact public health and emergency management planning in the Rockaways is insufficient to confer standing. Further, respondents argue that the petitioners' allegation that using Floyd Bennett Field as a migrant shelter will compromise their rights to liberty, safety, and access to essential government services is vague, unsupported by any evidence, and otherwise insufficient to confer standing.
Respondents further argue that the injuries that the petitioners allegedly sustained are outside the scope of the Gateway Act, NEPA, and SEQRA, all of which were enacted to protect the environment. In this regard, respondents contend that the alleged injuries fall outside the zone of interest sought to be protected or promoted by the statutes. In particular, the State respondents maintain that the petitioners do not allege how the operation of the .migrant shelter at Floyd Bennett Field, let alone the State's Reimbursement Agreement with the City, will have any impact upon the environment. In addition, the City respondents aver that petitioners lack standing to assert their zoning claims inasmuch as none of them live in close proximity to Floyd Bennett Field and fail to allege any special damages that are different in kind from the community in general.
The City respondents also argue that the petitioners do not have standing to assert their claims under the State Constitution. In particular, to the extent that petitioners argue that the provision of shelter and other services to migrants at Floyd Bennett Field is violative of the State Constitution, they fail to assert or identify an injury-in-fact that they themselves experienced as a result of this violation. Moreover, to the extent that petitioners allege that Floyd Bennett Field is unsuitable for the underlying purpose of housing migrants, the City respondents argue that petitioners lack standing to assert this claim since none of the petitioners receive services at this location. Further, the City respondents maintain that the petitioners are not entitled to standing as taxpayers as they fail to allege, or otherwise demonstrate, how they are personally aggrieved by the City and State's actions ✓ in a manner different in kind and degree from the community in general.
In opposition, petitioners initially note that certain petitioners (Paul King, Margaret Powers, Mary Glynn, Catherine Rose, Robert Rose, Dina Tammaro, Thomas P. Sullivan, Harold Paez, Virginia Donohue, and Mark Anaya) are in fact residents of the Rockaways. As members of the community surrounding Floyd Bennett Field, it is petitioners' contention that these individuals will suffer direct harm as a result of the emergency migrant shelter by being deprived of vital services including police, fire, healthcare, transportation, and sanitation that is distinct from individuals from more distant communities. Petitioners further contend that these individuals may face harm as housing migrants at Floyd Bennett Field could potentially obstruct the evacuation of the Rockaways in the event of a natural disaster. In addition, petitioners maintain that these individuals have suffered direct harm as a result of the emergency migrant shelter at Floyd Bennett Field that is distinct from residents of the State and City inasmuch as migrants have gone door to door in their neighborhoods asking for money. In this regard, petitioners submit a declaration by petitioner New York City Council Member Joann Ariola (petitioner Ariola), who represents the 32nd Council District which covers the area adjacent to Floyd Bennett Field. Among other things, petitioner Ariola states that she has personally observed groups of migrants going through her neighborhood and has received numerous complaints from her constituents complaining about being "besieged" by migrants in their homes and on the streets. Petitioners also submit a declaration by petitioner Jaime Williams, a member of the New York State Assembly from the 59th Assembly District (petitioner Williams) which covers Floyd Bennett Field. In her declaration, petitioner Williams states that due to an impending storm on January 9, 2024, the migrants residing at Floyd Bennett Field were temporarily housed at her daughter's school, James Madison High School, which required all students to receive remote instruction for one day.
In further opposition, petitioners maintain that they have standing to challenge the Governor and Mayor's executive orders based upon their status as voters in the State of New York. Petitioners also contend that the "void-statute exception" is applicable in this matter and provides them with standing. In addition, petitioners claim that, under State Finance Law § 123-b, they have standing to challenge the executive orders as citizen-taxpayers seeking to prevent the unlawful expenditure of state funds. Finally, petitioners maintain that the petitioners who are elected officials have standing to sue inasmuch as the Governor and Mayor usurped their power by issuing the emergency executive orders without proper authorization under the Executive Law.
Standing is "a threshold requirement for a plaintiff seeking to challenge government action" (New York State Assn, of Nurse Anesthetists v Novello, 2 N.Y.3d 207, 211 [2004]). In determining whether or not standing exists, "a plaintiff must show 'injury in fact,' meaning that plaintiff will actually be harmed by the challenged administrative action" (id. at 211; see also Matter of Council of Greenburgh Civic Assns. v Town Bd. of the Town of Greenburgh, 202 A.D.3d 954 [2d Dept 2022] [holding that generalized allegations that an action could result in a public safety hazard is insufficient to demonstrate an actual injury distinct from that suffered by the public at large]). Further, "a claimed injury may not depend upon speculation about what might occur in the future, but must consist of 'cognizable harm, meaning that [a petitioner or plaintiff] has been or will be injured'" (Matter of Brennan Center for Justice at NYU School of Law v New York State Bd. of Elections, 159A.D.3d 1299, 1301 [3 rd Dept 2018], quoting New York State Assn, of Nurse Anesthetists, 2 N.Y.3d at 214; see Matter of Mental Hygiene Legal Serv. v Daniels, 33 N.Y.3d 44, 50 [2019] [noting that "the injury-in-fact requirement necessitates a showing that the party has 'an actual legal stake in the matter being adjudicated' and has suffered a cognizable harm that is not "tenuous," "ephemeral," or "conjectural" but is sufficiently concrete and particularized to warrant judicial intervention" [internal citation omitted]; Frankel v JP. Morgan Chase &Co., 193 A.D.3d 689, 690 [2d Dept 2021]). In addition to showing that they suffered an injury-in-fact, a petitioner challenging governmental action in an Article 78 proceeding based upon statutory violations must demonstrate that the interest asserted falls within the zone of interest to be protected by the statutes that were allegedly violated (see Kogut v Village of Chestnut Ridge, 214 A.D.3d 808, 809 [2d Dept 2023]).
Turning first to petitioners' assertion that placing migrants at Floyd Bennett Field will deprive them of vital services including police, fire, transportation and healthcare services, and may interfere with evacuation plans for the Rockaways, the court finds that such assertion is speculative and that the petitioners have failed to show that they have suffered an injury-in-fact as required in order to confer standing. Further, petitioners have failed to offer any support for the proposition that the placement of a maximum of 2,000 migrant asylum seekers at Floyd Bennett Field will have any measurable impact upon the provision of vital services to the surrounding areas or could otherwise interfere with the evacuation plan for the Rockaways. In addition, petitioners' claims that migrants from Floyd Bennett Field have engaged in begging in some of the surrounding neighborhoods does not constitute an injury-in-fact sufficient to confer standing (see generally Matter of Mental Hygiene Legal Serv., 33 N.Y.3d at 50). Further, the fact that petitioner Williams' daughter was caused to engage in remote learning for a single day as a result of the temporary relocation of migrants to her high school does not constitute an injury-in-fact sufficient to confer standing. In any event, petitioners failed to allege this as a basis for standing in their pleadings (Matter of Shultz v State of New York, 81 N.Y.2d 336, 244 [1993]).
Turning to petitioners' claims under SEQRA, NEPA, and the Gateway Enabling Act, the court finds that the alleged injuries sustained by petitioners do not fall within the zone of interest that these statutes were enacted to protect, as all three of these statutes were enacted to protect the environment. Indeed, the petitioners' claims do not arise out of environmental or ecological concerns, and they fail to adequately allege, let alone support, any claim that the temporary housing of approximately 2,000 migrant asylum seekers at Floyd Bennett Field will have an adverse effect on the environment so as to fall within the purview of SEQRA, NEPA, or the Gateway Act.
"The purposes of SEQRA, as stated by the Legislature, are to encourage productive and enjoyable harmony with our environment; 'to promote efforts which will prevent or eliminate damage to the environment and enhance human and community resources; and to enrich the understanding of the ecological systems, natural, human and community resources important to the people of the state'" (Society of Plastics Indus., Inc. v County of Suffolk, 77 N.Y.2d 761, 777 [1991], quoting ECL § 8-0101).
The stated purpose of NEPA is "[t]o declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality" (43 USC § 4321).
The Gateway Act was enacted "to protect for the use and enjoyment of present and future generations an area possessing outstanding natural and recreational features (16 USC § 460cc).
Similarly, none of the petitioners have standing to raise claims that the housing of migrants at Floyd Bennett Field violates zoning laws. In particular, it is well-settled that a petitioner who commences an Article 78 proceeding based upon a claim that a particular government action violates local zoning laws must demonstrate that they suffered an injury-in-fact unless they live in close proximity to the area where the alleged zoning violation occurs (see Matter of Gernatt v Asphalt Prods v Town of Sardinia, 87 N.Y.2d 668, 687 [1996]; Matter of Youngwirth v Town of Ramapo Town Bd, 98 A.D.3d 678, 680 [2d Dept 2012]). Here, there are no allegations that any of the petitioners live in close proximity to Floyd Bennett Field. In addition, petitioners have failed to demonstrate that the alleged zoning law violations associated with the temporary shelter at Floyd Bennett Field caused them any injuries or harm. Moreover, the injuries alleged fall outside the zone of interest protected by the zoning laws (Matter of Sun-Brite Car Wash, Inc. v Board of Zoning and Appeals of the Town of North Hempstead, 69 N.Y.2d 406, 415 [1987]).
There is also no merit to petitioners' claim that several of them have standing to sue based upon their status as New York State and New York City legislators. "Cases considering legislator standing generally fall into one of three categories: lost political battles, nullification of votes and usurpation of power" (Silver v Pataki, 96 N.Y.2d 532, 539 [2001], rearg denied 96 N.Y.2d 938 [2001]). "Only circumstances presented by the latter two categories confer legislator standing" (id.). Here, petitioners claim that the Governor and Mayor usurped the Legislatures' power by issuing the Emergency Orders without statutory authorization. However, when relying on a usurpation argument, the legislator/petitioners must allege that they suffered a direct personal injury as opposed to harm caused to the legislative branch as a whole (see Borrello v Hochul, 221 A.D.3d 1484, 1487 [4th Dept 2023]). Assuming, for argument's sake, that the Governor and Mayor did usurp the State and City Legislatures' power in issuing the emergency orders, there was no personal or individual harm caused to the elected officials who are petitioners in this case. Rather, any harm would be to the legislatures as a whole.
Also lacking in merit is petitioners' claim that they need not demonstrate that they suffered an injury-in-fact since the "void-statute exception" applies. Under this exception, "a statute may be attacked by someone otherwise affected by it but not aggrieved by its unconstitutional feature. The exception is available if the statute can be found unconstitutional as to others not before the court and the constitutional and unconstitutional features cannot be meaningfully severed, thus rendering the entire statute invalid" (Matter of Daniel C., 99 A.D.2d 35,43 [2d Dept 1984], affd 63 N.Y.2d 927 [1984]). Here, petitioners do not allege that any statute is unconstitutional. Instead, they maintain that EEOs 224 and 230 and State EO 28 are all unconstitutional. Furthermore, even if the exception did apply to emergency orders as well as statutes, petitioners specifically allege that they were directly injured as a result of the purported unconstitutional features in the Emergency Executive Orders at issue herein.
Petitioners' claim that their status as voters confers standing to challenge the State and City's actions is also unavailing. Petitioners' reliance upon the case of Wright v County of Cattaraugus (41 A.D.3d 1303 [4th Dept 2007]) is misplaced. In Wright, the Fourth Department found that a voter had standing to challenge a Local Law enacted by a county legislature that violated the Municipal Home Rule Law inasmuch as the Local Law in question directly impacted the plaintiff's voting power as a county resident. Here, however, the emergency orders issued by the Mayor and Governor did not have any impact on the petitioners' voting rights.
As a final matter, the court finds no merit to petitioners' claim that they have standing as taxpayers to challenge the State and City respondents' actions. It is true that "citizen-taxpayers need not demonstrate an injury-in-fact to acquire standing. Instead, pursuant to State Finance Law § 123-b (1), a citizen-taxpayer may bring suit to prevent the unlawful expenditure of state funds 'whether or not such person is or may be affected or specially aggrieved' by the challenged action'" (Saratoga County Chamber of Commerce v Pataki, 100 N.Y.2d 801, 813 [2003], quoting State Finance Law § 123-b [1]). However, "courts have been inhospitable to plaintiffs who seek essentially to challenge nonfiscal activities by invoking the convenient statutory hook of section 123-b" (id. at 813, citing Matter of Transactive Corp, v New York State Dept of Social Servs., 92 N.Y.2d 579, 589 [1998]). Thus, "a plaintiff's claims must have a 'sufficient nexus to fiscal activities of the State' in order to confer standing" (Saratoga County Chamber of Commerce, 100 N.Y.2d at 813, quoting Rudder v Pataki, 93 N.Y.2d 273, 281 [1999]). "Accordingly, a claim that state funds are not being spent wisely is patently insufficient to satisfy the minimum threshold for standing, but a claim that it is illegal to spend money at all for the questioned activity likely would provide the plaintiff with standing" (Saratoga County Chamber of Commerce, 100 N.Y.2d at 813-814).
Here, it is clear that the dispute between petitioners and the State and City respondents over the migrant shelter at Floyd Bennett Field is not about the fiscal activities of either entity. Indeed, no one disputes that the State and City have the authority to spend funds to establish shelters for the homeless population. Rather, it is a political dispute over the City and State's decision to temporarily house the migrant asylum seekers at the Floyd Bennett Field location and petitioners seek to "use the expenditure of money as a pretense to challenge [that decision]" (id. at 813). Accordingly, petitioners do not have standing to challenge the City and State's actions pursuant to State Finance Law § 123-b (1). Thus, petitioners have failed to meet their threshold burden of establishing they have standing to maintain this proceeding/action against the City and State respondents.
Federal Enclave
In any event, even if petitioners had established that they have standing, their claims that respondents violated SEQRA and City zoning regulations in leasing and setting up the shelter are barred because Floyd Bennett Field is a federal enclave under the Property Clause of the United States Constitution (see U.S. Const, art I, § 8, cl 17). A federal enclave is land that the United States Congress has acquired from a state for a needful purpose and a state has explicitly ceded exclusive jurisdiction of the land so acquired to the United States (see Paul v United States, 371 U.S. 245, 265-267 [1963]). "Since a State may not legislate with respect to a federal enclave unless it reserved the right to do so when it gave its consent to the purchase by the United States, only state law existing at the time of the acquisition remains enforceable, not subsequent laws" (id. at 268; see Pacific Coast Dairy v Department of Agric. Of California, 318 U.S. 285, 294-295 [1943]).
The property clause provides, as is relevant here, that, "The Congress shall have Power * * * To exercise exclusive Legislation in all Cases whatsoever [over the District of Columbia] and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Sarne shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings."
Floyd Bennett Field, which opened in 1931, was the City's first municipal airport (NY St Cts Elec Filing [NYSCEF] Doc No. 14, Decision Memorandum and Environmental Review to Support Emergency Activities for Temporary Housing of Migrants; Friends of Gateway v Slater, 257 F.3d 74, 75 [2d Cir 2001]). During World War II, the United States acquired Floyd Bennett Field for the purpose of operating a Naval Air Station (NYSCEF Doc No. 14, at 2; NYSCEF Doc No. 18, at 2, Deed of Cession; Friends of Gateway, 257 F.3d at 75). By way of The Deed of Cession of Jurisdiction (Deed of Cession) for Floyd Bennett Field signed by Governor Thomas Dewey, the Governor did,
"[H]ereby in the name and on behalf of the State of New York, cede to the United States of America the jurisdiction of the lands above described [Floyd Bennett Field], the United States of America to hold, possess and exercise such jurisdiction subject to the terms and conditions of the said State Law, upon the express condition that the State of New York shall retain a concurrent jurisdiction with the United States on and over the property and premises as aforesaid, so far as that all civil and criminal process, which may issue under the laws or authority of the State of New York, may be executed thereon in the same way and manner as if such jurisdiction had not been ceded, except so far as such process may affect the real or personal property of the United States" (NYSCEF Doc No. 18, at 3).
After the Naval Air Station was decommissioned in 1971, Floyd Bennett Field, except for a small portion thereof not at issue herein (see Friends of Gateway, 257 F.3d at 75), was transferred from the Navy to the United States Department of Interior (DOI) upon the establishment of the Gateway National Recreation Area (Gateway) and included within the boundaries of the Jamaica Bay Unit of Gateway (16 USC §§ 460cc [a] [1], 460cc-l [b], added by Pub L 92-592, 86 St 1308 [Gateway Act]; NYSCEF Doc No. 18, at 2; Friends of Gateway, 257 F.3d at 75).
The Deed of Cession submitted by the City demonstrates that Floyd Bennett Field is a federal enclave (see People v Segui, 11 Mise 2d 999, 1001 [Ct of Spec. Sessions, Kings County 1958]; see also United States v Johnson, 994 F.2d 980, 984-985 [2d Cir 1993]). Since the City has also shown that SEQRA, enacted in 1975 (Matter of Entergy Nuclear u Operation, Inc. v New York State Dept, of State, 28 N.Y.3d 279, 290 [2016]; L 1975, ch 612]), and the current City zoning laws relied upon by petitioners, enacted in 1960 (see Matter of Lefrak Forest Hills Cor. v Galvin, 40 A.D.2d 211, 213 [2d Dept 1972], affdon the opinion below 32 N.Y.2d 796 [1973], cert, denied 414 U.S. 1004 [1973]) were enacted after New York ceded the Field to the federal government, those regulations do not apply to Floyd Bennett Field (see Paul, 371 U.S. at 265-267; Pacific Coast Dairy, 318 U.S. at 294-295; Schiappa v Brookhaven Science Assocs., 403 F Supp2d 230, 238 [EDNY 2005]).
In reaching this conclusion, the court notes that the Deed of Cession's limited reservation of concurrent jurisdiction with respect to the service of civil and criminal process at Floyd Bennett Field is not incompatible with the cession of exclusive jurisdiction (see James v Dravo Contracting Co., 302 U.S. 134, 146-147 [1937]; Sundaram v Brookhaven Nat. Laboratories, 424 F Supp2d 545, 570-571 [EDNY 2006]; People v Kraus, 212 A.D. 397,404 [2d Dept 1924]). In addition, as the Deed of Cession contains no express provision providing that the property would revert to New York in the event it was no longer used as a naval air station, the Navy's transfer of the station to the Department of the Interior after the decommissioning of the air station and upon the creation of Gateway did not end Floyd Bennett Field's status as an enclave (see Swords to Plowshares v Kemp, 423 F Supp2d 1031, 1035-1036 [ND Cal 2005]; cf. Palmer v Barrett, 162 U.S. 399, 403-404 [1896]). Enclave jurisdiction also applies to lands located in national parks (see Collins v Yosemite Park &Curry Co., 304 U.S. 518, 530 [1938]), and is not lost by leasing the land for a commercial purpose (see Humble Pie Pipe Line Co. v Waggonner, 376 U.S. 369, 372-373 [1964]; Arlington Hotel Co. v Fant, 278 U.S. 439, 455 [1929]). Petitioners, in opposition, do not specifically address the issue of exclusive enclave jurisdiction, and have submitted no legal or factual basis for finding that Floyd Bennett Field is not such an enclave.
Even assuming that the federal government has not retained exclusive enclave jurisdiction over Floyd Bennett Field, this court finds that there has been no violation of SEQRA and zoning laws in view of the Mayor's executive orders declaring a state of emergency and suspending applicable laws relating to land use review. Both SEQRA and the City Environmental Quality Review (CEQR), the City's own environmental provision, exempt from review emergency actions taken on a limited and temporary basis (see 6 NYCRR 617.5 [c] [42]; ECL 8-0113; Rules of City Planning [62 RCNY Appendix A] § 6-04 [h]), and since, as discussed below, these orders were properly issued, they provide a proper basis for finding an emergency within the meaning of SEQRA and CEQR's emergency exemptions (see Matter of Board of Visitors-Marcy Psychiatric Center v Coughlin, 60 N.Y.2d 14, 20-21 [1983]; Spring-Gar Community Civic Association, Inc. v Homes for the Homeless, Inc., 149 A.D.2d 581, 582 [2d Dept 1989]; Matter of Silver v Koch, 137 A.D.2d 467, 470 [1st Dept 1988], appeal denied 13 N.Y.2d 702 [1988]; cf East Thirteenth St. Community Assn, v New York State Urban Dev. Corp., 189 A.D.2d 352, 365 [1st Dept 1993]). While the City's Uniform Land Use Review Procedure (ULURP) and the. zoning regulations at issue do not contain an emergency exception, the emergency executive orders here expressly suspended ULURP application and the zoning regulation contained in the Zoning Resolution of the City of New York.
This court notes that the October 13, 2023 United States District Court order (Cogan, J.) remanding this action back from federal court did not address this issue expressly and, in view of the fact that the issue was not raised by the City respondents in their notice of removal, the remand order cannot be found to have implicitly addressed the issue either.
Even assuming that Floyd Bennett Field is not an exclusive federal enclave and that the City would at some point, despite the emergency orders, have to perform the review required by SEQRA and follow the process mandated by ULURP (see Matter of Board of Visitors-Marcy Psychiatric Center, 60 N.Y.2d at 20-21; Matter of Tucker v City of New York, 210 A.D.3d 565, 566-567 [1st Dept 2022]; East Thirteenth St. Community Assn., 189 A.D.2d at 365; see also Matter of. Gerges v Koch, 62 N.Y.2d 84, 91-94 [1984]), the relief requested here involving a declaration that the City's leasing of the Field for purposes of housing migrants is improper and an injunction barring use of the Field for such purposes is incompatible with any order requiring the City to comply with the requirements of SEQRA or ULURP. Moreover, at this point in time, the granting of an injunction would be improper. Petitioners did not request a temporary restraining order at the commencement of this proceeding, and the City has constructed the temporary facilities at the Field and is currently housing approximately 2,000 migrants therein (see Matter of Gerges, 62 N.Y.2d at 95; Matter of Silver, 137 A.D.2d at 471; see also Matter of UPROSE v Power Auth. of State of N. Y, 285 A.D.2d 603, 608 [2d Dept 2001]).
City Respondents' Executive Orders
In addition, petitioners have failed to establish that respondents' actions in issuing the executive orders, entering into the Lease and the Reimbursement Agreement were irrational, arbitrary or capricious. Specifically, petitioners argue that EEOs 224 and 230 are unconstitutional and exceed the City respondents' authority under the Executive Law as they have failed to establish that an "emergency" exists warranting the suspension of various local laws and regulations including those related to zoning. Petitioners therefore maintain that the Executive Orders should be declared contrary to statute and the Constitution. They further assert that the issuance of these Executive Orders were arbitrary and capricious acts subject to injunction.
In support of their cross motion, the City respondents assert that Mayor Adams' issuance of EEOs 224 and 230 is consistent with Executive Law §§20 (2) (a) and 24, and argue that an influx of more than 100,000 migrants into the City presents a significant risk of street homelessness which could result in widespread or severe damage, injury or loss of property. The City respondents acknowledge that an "unprecedented influx of asylum seekers" is not listed as a potential natural or man-made disaster under Executive Law; however, they argue that the list contained in Executive Law § 20 (2) (a) is not exhaustive and therefore encompasses the current migrant crisis.
The New York City Charter designates the Mayor as "the chief executive officer of the city" (NY City Charter § 3). Pursuant to Executive Law § 24 (1), the Mayor, as "chief executive" of the City, is explicitly authorized to declare a local state of emergency "in the event of a disaster, rioting, catastrophe, or similar public emergency within the territorial limits of any county, city, town or village, or in the event of reasonable apprehension of immediate danger thereof, and upon a finding by the chief executive thereof that the public safety is imperiled thereby" (Executive Law § 24 [1] [emphasis supplied]). That provision further provides that, following and during the pendency of such "state of emergency," the chief executive "may promulgate local emergency orders to protect life and property or to bring the emergency situation under control" (id). In addition, Executive Law § 24 (1) (f) specifically states that local governments may provide for the "establishment or designation of emergency shelters" following an emergency declaration (Executive Law § 24[l][f]).
The Executive Law also sets forth certain limitations on the Mayor's emergency powers, one of which is that it requires that any state of emergency declaration last only thirty days (Executive Law § 24 [1]), after which time the Mayor can, at his or her discretion, declare a continuance of the emergency for another thirty-day period, which is what occurred here. Second, pursuant to subsection 8 of Executive Law § 24, the legislature can "terminate by concurrent resolution" any emergency orders at any time (Executive Law § 24 [8]).
The definition of "disaster is set forth in subdivision 2 (a) of Executive Law § 20, which is as follows:
"occurrence or imminent, impending or urgent threat of wide spread or severe damage, injury, or loss of life or property resulting from any natural or man-made causes, including, but not limited to, fire, flood, earthquake, hurricane, tornado, high water, landslide, mudslide, wind, storm, wave action, volcanic
activity, epidemic, disease outbreak, air contamination, terrorism, cyber event, blight, drought, infestation, explosion, radiological accident, nuclear, chemical, biological, or bacteriological release, water contamination, bridge failure or bridge collapse. (Executive Law § 20 [2] [a] [emphasis supplied]).
It is petitioners' contention that the influx of thousands of migrant asylum seekers within the City does not fall within the ambit of the above-referenced definition of "disaster." In support of this contention, petitioners urge this court to follow the ruling in Herkert v State of New York (81 Mise.3d 526, 536 [Richmond County Sup. Ct, 2023]). In Herkert, the court held that "[t]he massive influx of migrant asylum seekers is not a 'disaster' contemplated by the Executive Law" and thus does not constitute an emergency (id. at 535). In so holding, the court specifically noted that while the bussing of migrant asylum seekers into the City (in unsustainable numbers) commenced as early as April 2022, the respondents' "inadequate planning, or lack thereof," as well as their "policies" may have been "the cause, or a contributing factor" to the current migrant crisis and, thus "[t]he emergency relied on is, for a large part, one of the Respondents' own making . . . ." (id. at 535-536). The court went on to state that "any emergency, as that term is used in the Executive Law, that is asserted to have existed .. . nearly a year ago, can no longer be said to be an emergency." (id. at 537). Therefore, absent finding that a valid emergency existed under the Executive Law, the Herkert court held that there was no rational justification for respondents' suspension of local laws in order to permit the creation of shelters for migrant asylum seekers in places where they otherwise would not be authorized (id. at 536).
As an initial matter, and as conceded by petitioners at oral argument, the Herkert determination, which was made in issuing a preliminary injunction, is not binding on this court because it was issued by a court of concurrent jurisdiction (see Mountain View Coach Lines v Storms, 102 A.D.2d 663, 665 [2d Dept 1984]; Matter of Cruikshank, 169 Mise 514, 515 [Sur Ct, Kings County 1938]), and because it was not a final determination on the merits as is required for it to be given collateral estoppel effect (see FC Notes SVC, LLC v United Gen. Tit. Ins. Co., 146 A.D.3d 9335, 936 [2d Dept 2017]; see also J.A. Preston Corp, v Fabrication Enters., 68 N.Y.2d 397, 402 [1986]; Coinmach Corp, v Fordham Hill Owners Corp., 3 A.D.3d 312, 314 [1st Dept 2004]). Nor is this court persuaded by Herkert's narrow interpretation of what constitutes a "disaster" emergency within the meaning of the Executive Law. "It is fundamental that a court, in interpreting a statute, should attempt to vi effectuate the intent of the Legislature" (Majewski v Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577, 583 [1998] [internal quotation marks omitted]; see Matter of Albany Law School v New York State Off. of Mental Retardation &Dev. Disabilities, 19 N.Y.3d 106, 120 [2012]). In this regard, since "the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof' (Majewski, 91 N.Y.2d at 5 83; see Commonwealth of the N. Mariana Is. v Canadian Imperial Bank of Commerce, 21 N.Y.3d 55, 60 [2013]). Notably, the definition of "disaster" set forth in Executive Law § 20 (2) (a) specifically includes the phrase "including, but not limited to," which suggests a broader reading of the provision. It is axiomatic that the phrase "including but not limited to" has an expansive meaning, intending to cover or convey a non-exhaustive listing of items (see Doniger v Rye Psychiatric Hosp. Ctr., Inc., 122 A.D.2d 873, 877 [2d Dept 1986], Iv. Denied 68 N.Y.2d 611 [1986] [use of phrase "including but not limited to" negated inference that parties intended to exclude other examples, and examples following phrase were illustrative only and did not limit broad scope of terms used]; see also In re Worldcom, Inc., 2007 WL 162782 [SDNY 2007] [phrase "including without limitation" means that following list is not exhaustive]; ESI, Inc. v Coastal Corp., 61 F.Supp.2d 35, 75 [SDNY 1999] [phrase "including but not limited to" indicates that general expression not limited to specific example given]). Since "words of statutes are the primary indicia of their meaning" (People v Owusu, 93 N.Y.2d 398, 405 [1999]), this court will not limit the clear intent of the expansive language chosen by the Legislature. Thus, as the list of disaster defining events set forth in Executive Law § 20 (2) (a) is clearly non-exhaustive, it leaves room for the addition of other events that were not contemplated by the Legislature at the time the provision was drafted. Moreover, had the drafters intended to limit the scope of qualifying disaster events, they could have easily omitted such expansive language from the provision. Indeed, that the massive influx of thousands of migrants in need of shelter was not specifically contemplated at the time the statute was drafted does not negate the finding that such event qualifies as a "disaster" emergency within the meaning of the Executive Law.
In light of the forgoing, this court is more inclined to adopt a broader interpretation of a "disaster" emergency pursuant to the Executive Law. In so doing, the court is persuaded by other courts that have found, albeit in the context of SEQRA, that an emergency exists regardless of whether it was a foreseeable and/or preventable long- standing problem. In this regard, an examination of the Court of Appeals' decision in Matter of Board of Visitors-Marcy Psychiatric Center v Coughlin, (60 N.Y.2d 14 [1983]) is instructive here. Marcy involved the proposed conversion of an unused portion of a State mental institution into a medium security correctional facility. The Commissioner of Correctional Services, charged with the implementation of the project, had issued a positive declaration recognizing that the proposed project would have an impact on the environment. He also had issued a "Declaration of Emergency," designating the project as an emergency action. The petitioners argued that no action should be taken prior to the filing of an environmental impact statement (EIS) by the State, whereas the State's position was that the emergency nature of the prison capacity shortage justified the decision not to file an EIS prior to the initiation of the project. Adopting a broad view of SEQRA's emergency regulations, which explicitly exempt "emergency actions that are immediately necessary on a limited and temporary basis for the protection or preservation of life, health, property, or natural resources," the Court of Appeals held that the Marcy project was reasonably designated as an emergency action in light of the critical shortage of correctional facilities and the necessity for immediate action thereby bringing it within the exception to SEQRA's EIS requirement (id. at 20). Acknowledging that prison overcrowding had been a deeply entrenched problem in the State "for some time," the Court emphasized that "that does not mean that there is no crisis or that there is no need to take immediate action to lay the foundation for a program which may provide relief in the near future .... [and that] [e]mergencies are often precipitated by the failure to take needed action in the past despite adequate warning" (id. at 17, 20-21; see also Matter of Gerges v Koch, 62 N.Y.2d at 95 [presented with challenge to City's conversion of property at the Brooklyn Navy Yard to a prison facility following Federal District Court ruling which resulted in early release of prisoner detainees, the Court reiterated the fact that the emergency may have been foreseen or caused by the failures of government officials to remedy the problem does not negate existence of current crisis]).
Citing Marcy, other courts have likewise applied a broader interpretation of what constitutes an "emergency" under SEQRA's regulations. For example, in Matter of Silver (137 A.D.2d at 470), which involved the temporary use of a pier for the mooring of a prison barge to alleviate prison overcrowding, the petitioners challenged the City's failure to follow State and City (SEQRA and CEQR) environmental review regulations with regard to siting the barge, arguing that the emergency exemptions did not apply. The Appellate Division, First Department held that the temporary mooring of the prison barge was an emergency action taken to ameliorate an urgent need for additional beds, and that it was neither irrational nor arbitrary or capricious in light of the "compelling and dangerous dimension and seriousness" of the prison overcrowding crisis. In so holding, the Court emphasized that it could not substitute its own discretion for that of the Commissioner in deciding whether an emergency exists. Instead, the court acknowledged that it is "limited to finding whether the declaration of emergency issued by the Correction Commissioner was rationally based and not arbitrary or capricious" (id. at 470).
Additionally persuasive are other cases that have determined that an "emergency action" existed in the context of SEQRA and/or CEQR's regulations in challenges specifically addressing the use of various spaces as homeless shelters (see e.g., Spring-Gar Community Civic Association, Inc., 149 A.D.2d at 582 [where petitioners sought to prevent the City from using a former hotel as a homeless shelter, the Second Department reversed the trial court's ruling that environmental reviews under SEQRA and CEQR were necessary finding that "an emergency situation currently exist[ed] in New York City with regard to the defendant city's legal and moral obligation to shelter a growing number of homeless families"]; Greenpoint Renaissance Enterprise Corp, v City of New York, 137 A.D.2d 597, 601 [2d Dept 1988], appeal denied 72 N.Y.2d 810 [1988] ["Given the nature of the homeless situation," the City's use of a building located within a City hospital complex (Greenpoint Hospital) for the purpose of sheltering homeless men constituted exempt "emergency action"]; see also Greentree at Murray Hill Condominium v Good Shepherd Episcopal Church, 146 Mise. 2d 500, 509 [Sup Ct, NY County 1989] [City agency's provision of funds for a homeless shelter at a church constituted emergency action in response to the homeless crisis and was therefore exempt from the requirement of preparation of an EIS, even if the emergency had existed for a significant period of time]).
Turning to the instant matter, as to EEOs 224 and 230, this court's review in a CPLR Article 78 proceeding is limited to whether they were issued without a rational basis and were arbitrary and capricious (see Matter of Krug v City of Buffalo, 34 N.Y.3d 1094, 1096 [2019]; Matter of Lemma v Nassau County Police Officer Indem. Bd., 31 N.Y.3d 523, 528 [2018]). "An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts" (Matter of Peckham v Calogero, 12 N.Y.3d 424, 431 [2009], citing Matter of Pell v Bd. of Ed. of Union Free School Dist. No. I of Towns of Scarsdale and Mamaroneck, Westchester County, 34 N.Y.2d 222, 231 [1974]). If a rational basis exists for its determination, the decision of the administrative body must be sustained (see Matter of Pell, 34 N.Y.2d at 230; Matter of Clark v New York State Div. of Hous. &Community Renewal, 193 A.D.3d 726, 727 [2d Dept 2021]; Matter of Lucas v Board of Educ. of the E. Ramapo Cent. Sch. Dist., 188 A.D.3d 1065, 1067 [2d Dept 2020]).
In support of their cross motion, the City respondents have submitted the affirmation of Sarah Gastelum, the Director of Emergency Operations for New York City's Office of Asylum Seeker Operations (NYSCEF Doc No. 9, Affidavit of Gastelum at ¶ 2). According to Ms. Gastelum, more than 150,100 asylum seekers have arrived in the City since the Spring of 2022, many of whom lacked housing and resources to care for themselves (id. at ¶¶ 5-7). As a result, the City's shelter system has seen an unprecedented increase in the number of individuals in need of emergency shelter services that have continually challenged the City's capacity and ability to keep pace with the growing demand "while continuing to serve the tens of thousands of other people who are currently using shelter facilities" (id. at ¶¶ 4,21). Despite opening over 214 additional shelter facilities in a period of months, the City has been forced to utilize alternative options for emergency shelters (id. at ¶ 7), which brings us to the property at issue herein, Floyd Bennett Field. City respondents entered into the Lease with NPS to utilize portions of Floyd Bennett Field to provide temporary emergency shelter for approximately 2000 newly arrived migrant asylum seekers (id. at ¶¶ 33, 35; see NYSCEF Doc No. 15). Prior to entering into the Lease, NPS performed an environmental review (NPS Environmental Review) of the proposed leasing plan, which concluded that no significant impacts would result from the temporary use of this space to house migrants (NYSCEF Doc No. 14, Decision Memorandum and Environmental Review in Support of Emergency Activities for Temporary Housing of Migrants). The environmental review included an analysis of the Floyd Bennett Field area as an appropriate site for temporary migrant housing. Specifically, NPS reviewed various aspects of the project, including but not limited to, its impact on air and sound quality, flooding and traffic/transportation. NPS identified 31 separate mitigation measures to address certain issues such as the development of storm management, emergency evacuation and transportation management plans. NPS ultimately determined that "[a]ction is needed to alleviate risks related to health and safety . of migrants and others and to assist the City in meeting migrant needs" and that the impact of using Floyd Bennett Field for temporary migrant housing would not be significant (id. [noted in the "Introduction" and "Purpose and Need" sections of unpaginated NPS Environmental Review]).
NPS determined that due to the emergency situation there was not a sufficient amount of time to conduct a full environmental assessment pursuant to NEPA. However, NPS conducted an environmental review and concluded that the Lease was consistent with federal regulations governing parklands (NYSCEF Doc. No. 14).
Based upon the foregoing, this court finds that the City respondents' issuance of EEOs 224 and 230, determining that the continuous influx of thousands of migrants into the City constitutes a disaster emergency pursuant to Executive Law, was rationally based (see Matter of Gerges, 62 N.Y.2d 84 affg 101 A.D.2d 201, 204] [in which the Court upheld the Second Department's determination that the Correction Commissioner's emergency declaration "was clearly not irrational, arbitrary or capricious, given the facts of the city's ., critical shortage of jail capacity and the renewed expansion of the jail population toward the mandated capacity limits"]). Indeed, that the City has been grappling with the arrival of unprecedented numbers of migrants for over a year, which, as argued by petitioners, may have been foreseen, minimized or even prevented does not "mean that there is no [humanitarian] crisis or that there is no need to take immediate action" to alleviate risks related to the health and safety of the migrants and others (see Bd. of Visitors-Marcy Psychiatric Ctr., 60 N.Y.2d at 21).
The Lease
To the extent petitioners assert that the City respondents' action in entering into the Lease was improper because the use of Floyd Bennett Field as a migrant shelter is incompatible with its use as a recreation area under 16 USC § 460cc-2 (a) (see also 54 USC §§ 102101,, 102102) and because no review of its use as a shelter was conducted under NEPA (42 USC § 4331), NPS, the federal unit that determined that it had the authority to enter into the Lease and which found that an emergency existed that precluded a prior NEPA review, is a necessary party to such determinations relating to the validity of the Lease (see CHC Food Service, Inc. v Ambach, 68 A.D.2d 897, 897 [2d Dept 1979], aff'd for the reasons stated below 48 N.Y.2d 932 [1979]; see also Stauber v Brookhaven Nat. Laboratory, 256 A.D.2d 570, 571 [2d Dept 1998]), and is a party over which this court cannot obtain jurisdiction (see Minnesota v United States, 305 U.S. 382, 388-389 [1938]; Federal Nat. Mortg. Ass'n v Lecrone, 868 F.2d 190, 193 [6th Cir 1989], cert, denied 493 U.S. 938 [1989]; Tomasi v Township of Long Beach, 364 F.Supp.3d 376, 388 [DNJ 2019]).
Recognizing their inability to directly attack NPS's determinations in the context of this proceeding, petitioners contend that their real claim is that it was arbitrary and capricious for the City respondents to enter into the Lease knowing that NPS had failed to follow NEPA and improperly used protected lands for a migrant shelter. To the extent this argument states a cognizable claim, the court notes that NPS is the governmental unit charged with administering Floyd Bennett Field and is presumably more familiar with the laws and regulations relating to its use and with NEPA's requirements than the City respondents (see Matter of Consolidated Edison Co. of N.Y. v Public Serv. Commn., 63 N.Y.2d 424,436 [1984]; Matter of Delese v Tax Appeals Trib. of State of N Y, 3 A.D.3d 612, 614 [3d Dept 2004]). Therefore, the court finds that the City respondents' reliance upon NPS's environmental determination was rationally based to justify their efforts to assist the City in addressing the immediate shelter needs of the migrant asylum seekers (see Matter of Silver, 137 A.D.2d at 470; see also Spring-Gar Community Civic Association, Inc., 149 A.D.2d at 582; Greenpoint Renaissance Enterprise Corp, 137 A.D.2d at 601).
Claims Against State Respondents
As to petitioners' claims as against the State of New York, the Article 78 portion of this proceeding must be dismissed as against the State because it is not a "body or officer" against whom an Article 78 proceeding may be brought (see Matter of Vargas v State of New York, 95 A.D.3d 588, 589 [1st Dept 2012]; Matter of Capruso v New York State Police, 300 A.D.2d 27, 28 [1st Dept 2002]; Ferrick v State of New York, 198 A.D.2d 822, 823 [4th Dept 1993]). The declaratory judgment portion of the action as against the State is also dismissed based on the lack of standing. Moreover, the only challenged action at issue in this proceeding is the Reimbursement Agreement, and, assuming standing had been established, petitioners have failed to allege any legal basis for finding such agreement illegal, improper or that it was entered into without a rational basis.
As to Governor Hochul, who is being sued herein in her official capacity, her authority to issue State EO 28 declaring a disaster emergency is vested in § 28 of Article 2-B of the Executive Law. Once a disaster emergency has been declared, Executive Law § 29-a (1) expressly authorizes the Governor to temporarily suspend any "statute, local law, ordinance, orders, rules, or regulations, or parts thereof, of any agency ... if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster." In addition, Article 2-B limits such suspensions to 30-day periods and 30-day renewal periods, and it requires the publication of all suspensions in the State Bulletin (Id. at § 29-a [2] [a]). Importantly, the State Legislature has limited the executive branch's power as it retains the authority to terminate executive orders at any time by concurrent resolutions of the New York State Senate and Assembly (id. at § 29-a [4]).
Executive Law § 28 provides that "[w]henever the governor, on his own initiative or pursuant to a request from one or more chief executives, finds that a disaster has occurred or may be imminent for which local governments are unable to respond adequately, he shall declare a disaster emergency by executive order."
For the same reasons discussed above in relation to Mayor Adams' issuance of EEOs 224 and 230, State EO 28 issued by Governor Hochul, which declared a state of emergency due to "the arrival of increased numbers of migrants seeking shelter in the City and State of New York . . . ." was a rational exercise of her authority under Executive Law § 28 (see Matter of Pecham, 12 N.Y.3d at 431 [holding that Executive Orders shall be deemed arbitrary and capricious in the event they were issued "without sound basis in reason or regard to the facts;" that is, when not "supported by a rational basis"]; see also Matter of Gerges, 62 N.Y.2d at 95; Matter of Silver, 137 A.D.2d at 470; see also Spring-Gar Community Civic Association, Inc., 149 A.D.2d at 582; Greenpoint Renaissance Enterprise Corp, 137 A.D.2d at 601).
State EO 28 specifically states that "the arrival of increased numbers of migrants seeking shelter in the City and State of New York is expected to exacerbate an already large-scale humanitarian crisis and create a disaster emergency to which local governments are unable to adequately respond, creating a threat to health and safety, which could result in the loss of life or property" (https://www.governor.ny.gov/sites/default/files/2023-05/EO_28.pdf).
Additionally, the court finds that the State Respondents' action in entering into the Reimbursement Agreement in which they agreed to pay the costs (all rent obligations) associated with the Lease was rationally based and, thus, neither arbitrary nor capricious. The State Respondents entered into the Reimbursement Agreement in order to assist the City respondents' efforts to address the humanitarian crisis created by the unprecedented influx of asylum seekers which was putting a significant strain on the City's budget (NYSCEF Doc No. 16). Although asylum seekers have arrived in various parts of New York State, it is undisputed that the vast majority have sought shelter in New York City, placing a tremendous burden on the City's resources (State EO 28). Thus, Governor Hochul's determination that this situation had reached a crisis point which presented a threat to "health and safety, which could result in the loss of life or property" if immediate action was not taken to help alleviate this burden on New York City was rationally based on the facts (State EO 28). Accordingly, the court finds that the State respondents' decision to enter into the Reimbursement Agreement was a rational exercise of executive discretion regarding the use of State resources to support the City respondents' efforts to deal with the humanitarian crisis and was not in violation of any lawful procedure (see Matter of Madison County Indus. Dev. Agency v State of New York Auths. Budget Off, 33 N.Y.3d 131, 135 [2019] [noting that in an Article 78 proceeding judicial review is limited to whether the determination was irrational, arbitrary and capricious or contrary to law]; Matter of Wooley v New York State Dept, of Correctional Servs., 15 N.Y.3d 275, 280 [2010] [holding that an administrative action can only be overturned where it is "taken without sound basis in reason" or "regard to the facts"] [internal citations omitted]; see also Matter of Gerges, 62 N.Y.2d at 95; Matter of Quinn v Cuomo, 183 A.D.3d 928, 930 [2d Dept 2020] [holding that Governor's cancelation of special election following disaster declaration was properly authorized pursuant to emergency powers set forth in Executive Law 29-a (1)]; Matter of Silver, 137 A.D.2d at 470). Moreover, petitioners have failed to demonstrate that the Reimbursement Agreement is in violation of any Federal, State, or local laws or regulations.
Petitioners also assert that respondents' provision of emergency shelter for the migrants here violates NY Constitution article XVII, § 1, which provides that, "The aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature may from time to time determine." Petitioners contend that the mandate of this section does not apply here because it only applies to citizens of this state and because its provisions do not apply to those who have created their own need, citing to Matter of Barie v Lavine (48 A.D.2d 36, 39-40 [3d Dept 1975], affd 40 N.Y.2d 565 [1976]) and Matter of Harrington v Blum (117 Mise 2d 623, 624-625 [Sup Ct, New York County 1982]). This court need not resolve this issue, however, since, assuming, without deciding, that petitioners' reading of NY Constitution article XVII, § 1 is correct, petitioners will only have shown that the aid at issue here is not mandated by that section. However, their requested declaration would require this court to find that the converse is true, namely, that the provision of emergency shelter aid to migrants is forbidden. This court cannot do so here as petitioners have failed to identify a constitutional provision or statute that would bar respondents from providing the emergency shelter at issue here.
Petitioners' argument that that emergency shelter relief at issue here is barred by the gift clause of the constitution (NY Const art VIII, § 1) is not properly before this court since they raised this argument for the first time at oral argument (see VIP Pet Grooming Studio, Inc. v Sproule, ___A.D.3d___, 2024 NY Slip Op 00205, *6 [2d Dept 2024]).
Conclusion
The court, having considered the parties remaining Contentions, finds them unavailing. All relief not specifically granted herein has been considered and is denied. Accordingly, it is hereby
ORDERED that the State respondents' motion and the City respondents' cross motion to dismiss are granted pursuant to CPLR 3211 (a) (3) as petitioners lack standing. The petition is therefore denied and dismissed.
The foregoing constitutes the decision and order of the court.