Opposition Brief — Dawson v. Halperin

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No. 94-624

DEC 6 1894

ME Os BIE GLERS

In The cs

Supreme Court of the United States | __

October Term, 1994

JOAN DAWSON, PAUL DAWSON, and TANDRA DAWSON,

Petitioners,

- against -

DONALD M. HALPERIN, Commissioner of the New York State

Division of Housing and Community Renewal, and THE CITY OF

NEW YORK,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

NEW YORK STATE COURT OF APPEALS

RESPONDENT CITY OF NEW YORK’S

BRIEF IN OPPOSITION

PAUL A. CROTTY,

Corporation Counsel of the

City of New York,

Attorney for Respondent

City of New York,

100 Church Street,

New York, N.Y. 10007.

(212) 788-1056 or 1010

LEONARD J. KOERNER,*

JULIAN BAZEL,

STEPHEN J. McGRATH,

of Counsel.

*Counsel of Record

December 6, 1994

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QUESTIONS PRESENTED

# Whether the New York Court of Appeals

properly determined that the issues presented in this

proceeding have become moot.

ye Whether petitioners have shown that the New

York rent control provisions which protect a tenant who has

resided in an apartment for more than twenty years from

eviction by a landlord seeking possession of the apartment

for his or her personal use violates any right of petitioners

under the Fifth or Fourteenth Amendments to the

Constitution of the United States.

TABLE OF CONTENTS

QUESTIONS PRESENTED ..............

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New York City Administrative Code, §$26-408(b)(1) . 4

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In The

Supreme Court of the United States

October Term, 1994

JOAN DAWSON, PAUL DAWSON, and TANDRA DAWSON,

Petitioners,

- against -

DONALD M. HALPERIN, Commissioner of the New York State

Division of Housing and Community Renewal, and THE CITY OF

NEW YORK,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

NEW YORK STATE COURT OF APPEALS

RESPONDENT CITY OF NEW YORK’S

BRIEF IN OPPOSITION

INTRODUCTION

Petitioners challenge certain rent control provisions

applicable within the City of New York which protect from

eviction tenants who have resided in a rent-controlled

apartment for twenty years or longer. It is the position of

the City of New York, respondent here and defendant in the

courts below, that the issues raised by the petition do not

merit review in that they have been rendered moot by

petitioner Joan Dawson’s purchase of the tenants’ leasehold,

and in any event because the petitioners have failed to show

that the challenged regulations are in conflict with any

decision of this Court or of any other court.

STATEMENT OF THE CASE

The respondent City of New York hereby adopts the

Statement of the Case set out at pages two through six of

the Brief in Opposition of Respondent Halperin.

REASONS FOR DENYING THE WRIT

As in more fully stated in the brief of respondent

Halperin, the writ should be denied because the issues are

moot, and further because petitioners have failed to show

that the challenged regulations interfered with any

constitutional right.

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The issues are moot because the tenants, who were

protected from eviction by the challenged regulations

because they had resided in the premises for more than

twenty years, have vacated the premises pursuant to a sale

of their leaseholds to petitioner Joan Dawson, the owner of

the building. Petitioner’s argument that there was a

temporary taking for which they should receive

compensation, citing First English Evangelical Lutheran

Church v. Los Angeles, 482 U.S. 304 (1987), is unavailing.

In their complaint and submissions on the cross motions for

summary judgment, petitioners sought only a judicial

declaration of the statutes’ unconstitutionality; petitioners

never sought damages. Indeed, even had petitioners

succeeded in having the challenged regulations declared

unconstitutional, they wouid still be required, as noted by

the Appellate Division, to establish an immediate and

compelling need for personai use of the property. App. to

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Pet., p.13a; see 9 NYCRR § 2204.5(a) and New York City

Administrative Code § 26-408 (d) (1) (respectively set out

at App. to Pet., pp. 27a, 30a-31a). Under those

circumstances a claim for damages would have been

speculative and in fact was not sought by petitioners.

Petitioners, who desired to ultimately evict the tenants, are

now free to use their property unaffected by the challenged

regulations. The issues raised by petitioners are moot.

In any event, petitioners have failed to show any

constitutional violation. There has been no physical taking.

This Court has set a "clear rule" for determining such

Claims. Yee v City of Escondido, - U.S. -, 112 S. Ct.

1522, 1526 (1992). There has been no permanent

occupation of the property by the government or by a third

party authorized by the government. Loretto v

Teleprompter Manhattan CATV Corp., 458 U.S. 419, 434

(1982); Nollan v California Coastal Comm., 483 U.S. 825,

832 (1987). The challenged regulations do not "require[ ]

any physical invasion of petitioner’s property." Yee, p.

1528. The tenants were on the property when petitioner

Joan Dawson decided to purchase the property, and as the

Appellate Division pointed out in its decision, there are

numerous circumstances under which a landlord might

recover the tenant’s accommodation despite the challenged

regulations. App. to Pet., pp. 9a-10a. Here there is

nothing more than a regulation of the landlord tenant

relationship and the use of the property, not a physical

taking. Yee, pp. 1529, 1531. Petitioners’ asserted "right

to exclude outsiders" (Pet., p. 13) is nothing more than an

unfettered right to evict pre-existing tenants; however, a

limitation on the right to evict a present tenant is the

essence of rent regulation, not a physical occupation.

Likewise, petitioners have failed to establish a

regulatory taking. Petitioners have conceded that they

cannot show economic hardship. Pet., p. 13, n.7; Nollan

v Calif. Coastal Comm., supra, 483 U.S. at 834; Keystone

Bituminous Coal Assn. v DeBenedictis, 480 U.S. 470, 485

(1987). Petitioners’ assertion that the regulations

improperly frustrated their reasonable investment-backed

expectation of evicting the tenants was properly rejected by

the Appellate Division in light of the highly regulated nature

of the rent control system. App. to Pet., p. 13a. Finally,

petitioners’ argument that the regulations do not

substantially advance legitimate state interests in its

protection of long-term tenants, particularly in light of their

concession that the regulation does forward such an interest

in protecting the elderly and disabled (Pet., p. 20), is no

more than an invitation to the Court to act as a super-

legislature and to second-guess the decisions of New York’s

legislators. The disruptive effect upon long-term tenants in

particular and upon the community in general arising from

such evictions is a matter of public concern which may and

did support legislative ation. App. to Pet., pp. 14a - 15a;

Resp. Halperin’s Brief in Opp., pp. 2 - 3. For that reason

also, petitioners’ substantive due process claim was properly

dismissed below as "frivolous." App. to. Pet., p. 15a.

CONCLUSION

THE PETITION FOR A WRIT OF

CERTIORARI SHOULD BE DENIED.

Dated: New York, New York

December 6, 1994

Respectfully submitted,

PAUL A. CROTTY

Corporation Counsel of the

City of New York

Attorney for Respondent

City of New York

LEONARD J. KOERNER’,

JULIAN BAZEL,

STEPHEN J. McGRATH,

of Counsel.

*Counsel of Record