Brennan v. New York City Housing Authority

Birns, J. (concurring).

I would concur with the Presiding Justice and Justice Ross in similarly modifying the judgment below but not for the reasons expressed by them. The issuance of a preliminary injunction in this case should not rest upon the answer to the question whether the New York City Housing Authority is or is not estopped from enforcing the residency requirements found in the Public Officers Law.

The pivotal issue on this appeal is whether plaintiffs, as New York City Housing Authority Police Officers, are employees of a "political subdivision” or "municipal corporation” so as to be subject to the residency requirements of subdivision 1 of section 3 and section 30 (subd 1, par d) of the Public Officers Law.

*415I am of the view that those sections are inapplicable to police officers employed by the New York City Housing Authority because that authority is a legislatively created "public housing authority”, rather than a "political subdivision” or "municipal corporation”.

The New York City Housing Authority when first created (L 1934, ch 4) was intended to be separate and independent of any other governmental body (Foley, Jr., Low-Rent Housing and State Financing, 85 U of Pa L Rev 239, 253). It was originally governed by the Municipal Housing Authorities Law and subsequently placed under the Public Housing Law.

The character of public housing authorities was discussed in Ciulla v State of New York (191 Misc 528, 531, 536) where the court stated that "[reference to specific provisions of the Public Housing Law reveals a consistent, deliberate scheme to maintain intact the underlying concept of housing authorities as independent corporations,” and that "taking the Public Housing Law as a whole, reading it within the framework of the entire concept of the nature of public authorities as indicated by many considerations already discussed, the intent of the Legislature seems abundantly clear—housing authorities are separate, legally independent public corporations; they are the agents of neither the State nor its municipalities.”

The Court of Appeals, in Matter of New York Post Corp. v Moses (10 NY2d 199, 203), confirmed this view, declaring: " '[A] public authority enjoys an existence separate and apart from the State, even though it exercises a governmental function.’ Matter of Plumbing Assn. v. Thruway Auth., 5 NY2d 420, 424.)”

Counsel for the New York City Housing Authority "readily and willingly concede[s] * * * that the New York City Housing Authority is neither a municipal corporation nor a political subdivision of the State of New York, but rather, a 'public corporation which is a corporate governmental agency’.”

Because of this crystalized concept of the Housing Authority as neither a political subdivision of the State nor a municipal corporation, I am unable to accept the primary thesis of Justices Fein and Lupiano that our decision in this case is compelled by Matter of Maye v Lindsay (69 Misc 2d 276, revd 41 AD2d 127, reinstated 33 NY2d 552 on opn of Special Term).

The holding in that case was that the statutory adoption of *416a Model Cities program by the United States Congress did not impinge upon the power of the State to establish residency requirements for members of the police and fire departments. I recognize, of course, that representatives of the New York City Housing Authority Police Officers Benevolent Association joined in the successful challenge against preferential treatment for residents of Model Cities areas who sought employment as police officers or firemen. However, the specific issue which now confronts us was not raised in Matter of Maye (supra) nor in any court either at Special Term or on the appellate level. The comment in Matter of Maye (supra) by the Justice at Special Term that patrolmen of the New York City Housing Authority are members of the police force of a municipal corporation of the State within the meaning of sections 3 and 30 of the Public Officers Law was dictum. That statement was neither necessary nor essential to the court’s determination, and in my view, is not stare decisis. Consider Justice Silverman’s statement in that case (at pp 283-284): "(I think a Patrolman of the New York City Housing Authority Police Department is 'a member of the police force of any * * * municipal corporation of the state’ within the meaning of sections 3 and 30 of the Public Officers Law. Cf. Public Housing Law, §§ 401, 402, subd. 5.)” It is apparent that Justice Silverman’s observation, expressed parenthetically, was no more than a passing comment "uttered by the way, not upon the point or question pending” (Rohrbach v Germania Fire Ins. Co., 62 NY 47, 58) and obviously not intended to be the holding in Maye.

I find that the New York City Housing Authority Police Officers are not employees of a "political subdivision” or "municipal corporation” and thus are not subject to the residency requirements found in the Public Officers Law (§ 3, subd 1; § 30, subd 1, par d). Accordingly, Memorandum No. 58 issued by the Housing Authority Police Chief assertedly to enforce the residency provisions of the Public Officers Law so as to require all members of the New York City Housing Authority Police Department to be residents of New York State and reside within certain designated counties of that State is without legal effect.

The judgment of the Supreme Court, New York County (Asch, J.), entered July 3, 1979, inter alia, granting a preliminary injunction restraining the implementation or enforcement of that memorandum should be affirmed.