In an SDNY courtroom, motion practise in the Baez class action mold abatement case by NYCHA residents is set to collide with the inferior HUD Settlement Agreement negotiated by the U.S. Attorney's Office. The fate of the future of public housing hangs in the balance. NASA (Fair Use)

The de Blasio administration claims that RAD/PACT provide NYCHA an escape hatch from having to guarantee habitable living conditions to public housing residents

The class action plaintiffs in the Baez case are once again before Judge William Pauley III, because NYCHA claims that they are not obligated to comply with the Revised Consent Decree calling for mold remediation once public housing apartments undergo RAD/PACT conversion.

By Progress New York Staff

Updated 26 Jan 2021 14:25 Very high-priced lawyers representing the Municipal public housing authority are arguing before U.S. District Court Judge William Pauley III that the privatisation of public housing apartments under schemes being advanced by New York City Mayor Bill de Blasio (WFP-New York City) have released the troubled Agency of obligations to remediate mold in accordance with a Revised Consent Decree entered to settle a class action mold case. The legal arguments by the Agency, the New York City Housing Authority, or NYCHA, were made over the protestations of Plaintiffs in the Baez class action mold case, who, in turn, portrayed NYCHA’s legal arguments as claims that NYCHA’s “consistent noncompliance” in providing habitable living conditions to public housing residents demonstrated that it had “no obligations to NYCHA tenants.”

The loggerheads taking place in U.S. District Court began in 2013, when the Plaintiffs in the Baez case sought judicial intervention over NYCHA’s refusal to each remediate mold “was threatening their health.” The Revised Consent Decree, which NYCHA is presently trying to undermine, governs the procedure and deadlines to remediate mold from public housing apartments, and it came about after NYCHA refused to comply with the original Consent Decree. Now, NYCHA is back in the cross-hairs of Judge Pauly after Plaintiffs have complained that NYCHA was seeking to use the hand-off of management of public housing apartments to private sector Landlords as an excuse to abandon its obligations under the Revised Consent Decree. The transfer of management of public housing to private sector Landlords has been taking place under the Rental Assistance Demonstration, or RAD, programme of the U.S. Department of Housing and Urban Development, and the Permanent Affordability Commitment Together, or PACT, programme of the de Blasio administration — Orwellian names being given to a systematic dismantling of public housing.

The battle of legal arguments in the Baez case may force Judge Pauley to come to terms with the inferior Settlement Agreement he approved between HUD, NYCHA, and the U.S. Attorney’s Office.

The legal dispute arose from concerns had by the Plaintiffs in the Baez case that NYCHA was not going to ensure mold-free living conditions in public housing apartment buildings that have been converted under RAD/PACT. These concerns escalated once NYCHA began interpreting the Revised Consent Decree as permitting the abandonment of these obligations. NYCHA pointed to a legal definition that is now in dispute and to a punctuation error that makes legal interpretation more confusing as to which buildings constitute “NYCHA housing.” This legal wrangling has formed the essence of the issue before Judge Pauley, but the dispute has larger ramifications. NYCHA appeared to be arguing that its obligations to provide habitable apartments to residents arose from limited interpretations of the Revise Consent Decree, arguments which the Plaintiffs in the Baez case rejected, noting that the “revised mold standard procedure stem[med] from” NYCHA’s core obligations to provide its residents with habitable living conditions, “not the other way around.”

Ever since news reports about the privatisation of NYCHA began to make clear that Mayor de Blasio was seeking to end public housing as the cornerstone of housing as a human right, public housing activists began to oppose the RAD/PACT schemes. Progress New York provides material support to one such group of public housing activists, Fight For NYCHA. Members of Fight For NYCHA have organised tenants, protests, town halls, and, on Monday evening, are set to hold a Zoom forum of 2021 New York City mayoral candidates on the issues facing public housing. Almost since its inception, Fight For NYCHA have complained that a controversial Settlement Agreement negotiated by the U.S. Attorneys Office left public housing residents with fewer financial benefits and at-risk of civil rights violations that the Settlement Agreement were meant to cure.

Similarly, the Plaintiffs in the Baez case are claiming that NYCHA’s assertion that it can abandon its obligations to rid public housing of mold and its underlying causes upon the wholesale ending of Section 9 housing under RAD/PACT and another controversial scheme known as the Blueprint would leave public housing residents at-risk of civil rights violations. “Practically speaking, if NYCHA’s interpretation is countenanced, NYCHA could transition every single NYCHA apartment to Section 8 funding and declare itself free and clear of this Court’s jurisdiction, all without ever meeting its obligations under the Revised Consent Decree,” lawyers for Plaintiffs in the Baez case wrote. An analysis of the motion filings presently before the U.S. District Court for New York’s southern district revealed that Judge Pauley must decide how he can consider rejecting civil rights violations in the Baez case but continue to countenance them in the Settlement Agreement between NYCHA and HUD, which he himself accepted in 2019 to settle a broader physical condition standards investigation. It’s possible that should Judge Pauley may have to revisit the Settlement Agreement.

NYCHA made what appeared to be misrepresentations about material facts and essentially claimed that limitations of its own making prevent it from complying with its obligations.

The high-priced attorneys representing NYCHA to deny public housing residents humane living conditions hail from the New York and Washington offices of Paul, Weiss and the New York office of Herzfeld & Rubin. In their brief, they asserted that RAD/PACT Landlords “recognize the obligation to promptly remediate any mold and excessive moisture, and also have the resources to do so far more quickly and more effectively than NYCHA.” Their claims rest on untruths, because, according to information obtained by Progress New York, new RAD/PACT Landlords do not undertake costly repairs, like to “leaky roofs, fa[ç]ades, windows, or pipes” that may be the source of toxic mold until after a year of collecting Section 8 rent, potentially placing every new RAD/PACT Landlord in violation of the Revised Consent Decree in the Baez case, despite unfounded claims by NYCHA CEO Gregory Russ that NYCHA has the power to trigger events of default over the failure of RAD/PACT Landlords to make material repairs. Indeed, NYCHA has the power to automatically transfer all of its core obligations to provide habitable apartments, including requirements to comply with the Revised Consent Decree and the Settlement Agreement, to RAD/PACT Landlords, but NYCHA doesn’t. According to NYCHA’s own “Resident Handbook : A Guide to NYCHA RAD Conversion,” obtained by Progress New York in January 2020, it was disclosed that one risk of RAD conversions was that the RAD Landlord “may not complete renovations to quality standards” due to “investors’ incentives to protect their investment.” NYCHA’s delinquencies and that risk were not disclosed to Judge Pauley by NYCHA. Entering false or misleading documents into the docket of Court proceedings may constitute a crime. See 18 U.S. Code § 1001. Attorneys have a professional responsibility not to undermine the integrity of the adjudicative processes of tribunals by, amongst other prohibited acts, concealing “or failing to disclose information to the tribunal when required by law to do so.” See American Bar Association, Comment on Rule 3.3, Model Rules of Professional Conduct (1983), http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_3_candor_toward_the_tribunal/comment_on_ rule_3_3.html.

NYCHA further claimed that the Revised Consent Decree in the Baez case never applied to Section 8 residents, but that was likewise not true, based on information obtained by Progress New York, because there have been public housing residents receiving rental assistance through Tenant-based, Section 8 vouchers, and those tenants have been living amongst Section 9 tenants in public housing apartment buildings that have been subject to the Revised Consent Decree in the Baez case by virtue of repairs required to be received by the building to eliminate the source of excessive moisture that would benefit all residents. For example, at one building that underwent RAD/PACT conversion, located at 344 East 28th Street, which was part of the “Manhattan Bundle,” there were residents with residential leases prior to conversion that were arranged under Tenant-based, Section 8 vouchers. Once the rental assistance was converted to Project-based, Section 8 vouchers, that is when NYCHA claimed that the applicability of the Revised Consent Decree in Baez ended. It was not clear that NYCHA made that admission in its filing in the proceedings before Judge Pauley.

Counsel to NYCHA and NYCHA CEO Russ each claimed in their filings that RAD/PACT tenants retain numerous rights or protections with respect to mold and excessive moisture remediation that appear suspect. It was Judge Pauley, after all, who approved the controversial Settlement Agreement to conclude the U.S. Attorney’s Office’s investigation into the poor physical condition standards at NYCHA public housing apartment buildings. That Settlement Agreement denied RAD/PACT tenants the oversight by the Federal monitor appointed to ensure an end to the civil rights violations by NYCHA. As Judge Pauley must weigh whether “the manifest intent of the Revised Consent Decree was providing additional protections to NYCHA tenants in light of NYCHA’s persistent compliance failures,” it’s unknown if the U.S. Attorney’s Office for New York’s southern district will explain to Judge Pauley the decision to deny RAD/PACT tenants oversight by the Federal monitor.

The U.S. Attorney’s Office is headed by Audrey Strauss, who, is a former C-suite executive at a mining company. U.S. Attorney Strauss has been countenancing wholesale Constitutional rights violations by another Municipal Agency, the New York Police Department, according to reports published by Progress New York. For this report, the U.S. Attorney’s Office requested Progress New York reveal “that we declined to comment for this article.”

RAD/PACT and the Blueprint, the latter a plan to bring about the wholesale end of Section 9 housing at NYCHA, are credited to NYCHA CEO Russ, but the schemes are extensions of Mayor de Blasio’s controversial land use policies, which benefit his wealthy real estate donors. Some of the controversial RAD Landlords, like Wavecrest Management, have already been approved to do construction work through two, other Municipal Agencies, the New York City Housing Development Corporation and the New York City Department of Housing Preservation and Development. Mayor de Blasio has the power to appoint the leadership of all Municipal Agencies, including the NYCHA CEO and NYCHA’s board of directors, thus setting each Agency’s policies and priorities by proxy. Since NYCHA is apparently aiming to use RAD/PACT to end its obligations to remediate apartments for mold and excessive moisture, it is unknown if NYCHA plans to make the same legal claims in respect of the removal of poisonous lead paint. NYCHA CEO Russ did not answer an e-mail request for an interview for this report. When NYCHA CEO Russ signed his Declaration in support of Defendant NYCHA’s opposition brief on Monday, 11 Jan. 2021, his signature line indicated he was visiting with his family at his private home in Minneapolis, Minn.

Judge Pauley has scheduled oral arguments on Wednesday morning to hear from counsel in the Baez case.

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