OPINION OF THE COURT
In McCain v Koch (117 AD2d 198), decided May 13, 1986, this court held that homeless families with children are entitled to emergency shelter, on both constitutional and statutory grounds, and a preliminary injunction was granted prohibiting denial of such shelter to eligible homeless families. However, contrary to the position taken by the dissent, our decision in McCain is not dispositive of the issue here presented. Although this court in McCain did, in general terms, preliminarily bar the city respondents from denying emergency shelter to eligible homeless families, this court also, albeit most reluctantly, reversed the order of Special Term, which directed compliance with certain reasonable minimum standards in the providing of such emergency shelter, upon constraint of controlling Court of Appeals precedent (Matter of Bernstein v Toia, 43 NY2d 437; Tucker v Toia, 43 NY2d 1)
The directive involved, Administrative Directive 83 ADM-47, was issued by the New York State Commissioner of Social Services, on September 20, 1983, while the motion for a preliminary injunction in the McCain case (supra) was still sub judice before Special Term. The directive, applicable State-wide, was addressed to local Commissioners of Social Services in order "to clarify certain responsibilities of local districts to obtain emergency housing for homeless persons”. The relevant portions of that directive, which became effective October 1, 1983, are as follows:
"IV. Required Action
"A. Public Assistance
"1. Providing Access to Emergency Housing for Homeless Persons
"a. Local districts must have procedures in place to ensure that homeless persons or persons in imminent danger of becoming homeless can apply for emergency housing whenever such emergency housing is needed * * *
"b. Emergency housing must either be provided immediately if a homeless person is determined eligible or written notice must be given that no assistance will be provided where a homeless person is determined ineligible. A person who is determined ineligible shall be advised of the right to an expedited State Fair Hearing.
Page 268"2. Eligibility Determinations for Homeless Persons
"b * * * When the individual is determined to be in immediate need and is not determined to be ineligible, an emergency placement shall be made and other needs met.”
The instant proceeding was commenced in May 1985 by petitioners Lamboy and Serrano, who had intermittently been homeless since 1980, on behalf of themselves and their children, and on behalf of other similarly situated homeless families, seeking, inter alia, class certification and injunctive relief prohibiting the municipal appellants from denying the proposed class emergency housing. The petition asserted two bases for such relief—(1) constitutional and statutory grounds similar to those asserted in the McCain case, and (2) Administrative Directive 83 ADM-47. However, in moving for preliminary injunctive relief petitioners elected to rely only on the latter ground, which was not before the court in McCain, charging the city respondents with repeated violation, on a regular and systematic basis, of the mandate of 83 ADM-47 directing them to provide emergency housing "immediately if a homeless person is determined eligible”, and charging the State respondent with failure to properly enforce his own directive. In a very thoughtful, comprehensive and well-reasoned opinion, Special Term (Helen Freedman, J.), concluded that both class action certification and preliminary injunctive relief should be granted (129 Misc 2d 564). We adopt those findings and affirm in all respects.
While the decision, of Special Term, rendered in August 1985, is wholly consistent with the conclusions reached by this court some nine months later in McCain v Koch (supra), the order entered thereon is substantially broader and more expansive in scope because it is designed to obtain compliance with the definitive standards set forth in the directive. Contrary to the position taken by both appellants, the propriety of the order is amply supported both by the language of 83 ADM-47 itself, as well as by the underlying facts giving rise to this litigation which demonstrate that city respondents have repeatedly failed to properly comply with that directive with respect to eligible homeless persons such as petitioners, and others of the proposed class.
Initially, it must be stressed that there is no question here about the status of any of the petitioners. They are, concededly, all eligible homeless persons within the meaning of 83 ADM-47, and, as such, the directive mandates that "Emergency housing must * * * be provided immediately”. The
The Lamboy/Serrano family consists of five persons, including a father, who is brain damaged as a result of a mugging, and three daughters ranging from two to six years of age, one of whom is emotionally handicapped. They have a history of homelessness starting in 1980, followed by a heart wrenching odyssey, graphically described in the record, that includes short periods of respite at the sufferance of friends and relatives, stays at substandard welfare hotels and shelters, frequent separations of the family because of the refusal or inability of various facilities to accommodate them all, and repeated fruitless, and inappropriate, referrals by harried and overworked welfare officials. The proverbial "final straw” occurred when the family sought emergency shelter from the city respondents on May 9, 1985 and no facility that would accommodate all five members of the family was provided. Instead, the family was forced to spend three nights at the Emergency Assistance Unit (EAU) in Manhattan. (EAUs are welfare offices open all through the night after 5:00 p.m. on weekdays and throughout the weekend and holidays for purposes of obtaining emergency shelter for homeless families who have not otherwise been placed.) During the nights spent at the windowless, poorly ventilated EAU office, sleeping accommodations for the parents consisted of plastic chairs, countertops and makeshift beach cots, while their three children were crowded together into a single crib, all within the confines of a brightly fluorescent-lit office setting where noise and activity prevailed throughout the night. Bathing or washing facilities were nonexistent, toilet facilities unspeakable and the food most inadequate. That the family was still relegated to the EAU office on Sunday May 11th, the day ironically designated as "Mother’s Day”, may well explain the genesis of this lawsuit. The negative impact of such inhumane conditions even on the most stable and secure of persons speaks for itself. How much more devastating an impact such threatening conditions would have upon the lives and health of troubled adults and children with fragile emotional resources is painful to imagine.
The city appellants do not deny that they regularly provide overnight accommodations at EAU offices for eligible homeless people, and, indeed, the record reflects their acknowledgment that an average of two families each night had been sleeping at these offices for at least several months. It is the city’s position that these are hard-to-place families because of their size, or because they include pregnant women, newborn infants or members suffering from physical or emotional difficulties, contagious disease or other such health problems and that by reason of such problems the administrative directive is not violated when these families are provided with interim or "transitory” accommodations at EAU offices while the city seeks emergency housing for them.
The very language of the directive, however, renders such position wholly untenable. 83 ADM-47 expressly states that emergency housing must be "provided immediately” to eligible homeless people. The directive speaks to this requirement with consummate clarity, without the slightest hint of ambiguity and without exception. While the word "immediately” may variously be defined, the net of all its definitions is that the action take place "directly” "without delay” and "without the interposition of another agency”. (See, e.g., American Heritage Dictionary [2d coll ed 1982].) The urgency contemplated by the word "immediately” is further emphasized by subdivision (1) (a) in the directive which requires that the locality, in the first instance, "have procedures in place to ensure that homeless persons or persons in imminent danger
The city’s argument that it should be relieved of this "stringent” requirement in the case of "hard-to-place families” is insupportable. That homeless families may consist of five or more persons, and that such families will also include children and/or adults beset by physical, mental or emotional difficulties is hardly unforeseeable or unanticipated. It is well known that a substantial number of those unfortunate enough to be homeless also suffer from such handicaps, which are not atypical but, rather, predictable in this population. The municipal social service agencies are chargeable with knowledge of the problems to be expected in connection with the homeless population for whom they are mandated to provide emergency housing. Further exacerbating the plight of these people, including young children and pregnant women, by subjecting them to the trauma of sleeping in welfare centers, wholly unsuited for that purpose, has been recognized to be harmful in the extreme. The fact that those who remain overnight at these offices frequently suffer from, or, are crowded together with others afflicted by contagious diseases or conditions which make them unwelcome even at the congregate shelters or squalid hotels whose conditions were deplored in the decision in McCain (117 AD2d 198, 216-217, supra), further demonstrates the inappropriateness of using such offices as "emergency shelter” for any period, no matter how brief.
That the "transitory accommodations” provided at the EAU centers do not constitute the "emergency housing” mandated by 83 ADM-47 would appear to be self-evident. Any doubt, however, is dispelled by looking to the interpretation accorded to that term by the agency that promulgated the directive. It is, of course, well settled that the construction given statutes and regulations by the agency responsible for their administration, if not irrational or unreasonable, should be upheld. (Matter of Fineway Supermarkets v State Liq. Auth., 48 NY2d 464, 468; Matter of Howard v Wyman, 28 NY2d 434, 438.) Here, that position was very clearly stated by the first deputy counsel of the agency in a letter, dated June 19, 1985, which includes the following: "Requiring a family to spend the night
That position has been reiterated in the appellant State Commissioner’s brief and is further supported by various Fair Hearing decisions of the State Department of Social Services determining that the providing of overnight accommodations at an EAU center, even for one night, did not constitute the proper provision of emergency housing assistance pursuant to Administrative Directive 83 ADM-47. (See, e.g., Matter of Johnson, NY St Dept of Soc Servs Fair Hearing No. 0522242N; Matter of Morales, NY St Dept of Soc Servs Fair Hearing No. 0872315 L; Matter of Cordy, NY St Dept of Soc Servs Fair Hearing No. 0890330 L.)
The seemingly contrary decision in the Fair Hearing in the Lamboy case, issued on May 23, 1985, is not only at variance with the clear language of the directive and with the aforenoted stated policy and interpretation of that directive by the agency itself but is, also, in conflict with this court’s decision in McCain v Koch (supra, at 211), and was properly discounted by Special Term.
In light of the State appellant’s promulgation of the directive in the mandatory terms previously discussed, and his agency’s interpretation of the directive as proscribing overnight accommodation of homeless persons at a welfare center, his objection to the order entered by Special Term is somewhat puzzling and illogical. The directive, as promulgated by
We also find that Special Term’s grant of class action status was a proper exercise of its discretion under the circumstances here present. City appellants argue that the action has been rendered moot because the Lamboy/ Serrano family and the other proposed petitioners, have already been provided with emergency housing and that future claimants will be adequately protected under stare decisis. However, the questions presented here are of public importance and significance and are likely to recur and yet evade review. (See, McCain v Koch, supra, at 211; Matter of Jones v Berman, 37 NY2d 42, 57.) Special Term found that appellants failed to
Accordingly, the order and judgment (one paper) of the Supreme Court, New York County (Helen E. Freedman, J.), dated September 30, 1985 and entered on or about October 2, 1985, which, inter alia, denied the motion of the municipal parties to dismiss the petition, granted class certification pursuant to CPLR article 9, and granted petitioners’ motion for a preliminary injunction, should be affirmed, without costs.