Injunctions - When Injunctive Relief Appropriate - Indispensable Party Ultimately Responsible for Safety and Welfare of Asylum Seekers Housed in Local Hotels Must be Joined before Injunctive Relief Determination Regarding Eviction of Asylum Seekers

Keane & Beane P.C. (Edward J. Phillips and Robert Zitt of counsel) for plaintiff.

Pryor Cashman LLP (Todd E. Soloway of counsel) for defendants.

Plaintiff commenced this action by way of a summons and complaint seeking declaratory judgment, after alleging defendants' violations of Town of Cheektowaga Building Code §§ 260-47 and 260-47.1, and injunctive relief. Though the facts have been detailed here during argument, as a result of being{**86 Misc 3d at 807} overwhelmed by asylum seekers, New York City Mayor Eric Adams transferred more than 500 individuals to Erie County. These asylees were transferred by DocGo, a telehealth company that provides mobile medical and transportation services, to three hotels in the Town of Cheektowaga pursuant to a contract.

Plaintiff alleges that they were not consulted or informed that the asylum seekers would be housed in hotels located in Cheektowaga. After discovering that hotels were being serviced by social workers, nurses, food providers and the National Guard, the Town Building Inspector of the Town determined that the hotels were not in compliance with section 260-47.1 of the Town Code. More specifically, the Town contends that the structures were no longer being used as hotels but instead as shelters for asylum seekers. The Town Code provides, in relevant part, that a site plan shall be made and required for the current use of the subject premises as a shelter for non-transient persons. (See Town of Cheektowaga Building Code § 260-47.1 [b] [1].) Because the defendants failed to seek permission to convert their hotels into shelters, the Town contends they are in violation of the town law. Further, the Town notes that this code requires, in pertinent part, that prior to the expansion of an existing commercial activity, a change in use form seeking permission to change the existing land use classification was needed. The Town submits that the owner was required to submit a site plan to the Town. By failing to do so, the Town argues the defendants are in violation of the Town Code.

After several incidents that required police involvement, namely an alleged sexual assault against a hotel employee and an alleged rape against another asylee, the Town filed notice of Town Code violations for each hotel. Also, they commenced this action and received a temporary restraining order prohibiting further intensification of the properties for the purpose of sheltering asylum seekers.

Since then, the Best Western Airport hotel on Genesee was closed that resulted from the flooding of three floors of the hotel, rendering it uninhabitable. Asylum seekers residing at this hotel were moved to the Best Western Plus, also located in Cheektowaga. Police were subsequently called to the Quality Inn to respond to a fire alarm after it was discovered that fire [*2]suppression devices were tampered with and that residents were using hot plates and portable cooking devices in their{**86 Misc 3d at 808} rooms, which constituted a fire hazard. Lastly, police were called to the Best Western Plus after a fight broke out and asylum seekers began to throw rocks and break windows at a local establishment. Plaintiff now seeks the eviction of these asylum seekers from all hotels.

Defendants contend that there has been no change in the use of those hotels and, as such, the Town Code has not been violated. In addition, they maintain there are state laws that preempt the Town Code, which allow facilities such as these to be used to house asylum seekers on a temporary basis. They also contend that the Town's selective enforcement of the code is unconstitutional. Lastly, defendants urge this court not to grant the ultimate relief requested, as doing so would displace more than 500 adults and children.

Regrettably this is a crisis that has been created by irresponsible rhetoric that is incompatible with reality. The victims are innocent individuals who are now pawns in a larger political struggle. Nevertheless, the limited role of the court is not to disparage the current immigration system or question why the asylum seekers are here, but to simply determine whether the Town Code applies and if the conditions as they exist at these hotels as defined by law violate the code. This special proceeding raises several issues that cannot be summarily determined. A more developed record is necessary if the court is to grant the injunctive relief. As such, the court hereby orders the parties and their witnesses to appear September 6 and September 7 at 9:30 for an evidentiary hearing.

The court also finds that DocGo is an indispensable party to this proceeding, if for no other reason that they are ultimately responsible for the safety and well-being of those who they have contractually agreed to place in hotels in Erie County. Further, pursuant to CPLR 1001 (a), persons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants. (See Eclair Advisor Ltd. v Jindo Am., Inc., 39 AD3d 240 [1st Dept 2007].) As such, this court orders that DocGo be added as a party to this proceeding and that they be served with process no later than September 4, 2023. The court recognizes that service is to be accomplished on or before Labor Day. Holidays are disfavored as far as service of process is concerned. (Torres v Soler, 25 Misc 3d 1228[A], 2009 NY Slip Op 52330[U] [Sup Ct, Bronx County 2009].) Counsel for defendants is{**86 Misc 3d at 809} instructed to inform the CEO of DocGo, Anthony Capone, who he has prepared and secured an affidavit from in connection with this proceeding, of the hearing dates scheduled for next week.

In addition, the temporary restraining order enjoining the defendants from further intensifying the use of the subject properties as shelters for asylum seekers shall remain in full force and effect until the date of the hearing.