A new judge has been assigned to rule on Mayor Eric Adams’ request to suspend the city’s “right to shelter” requirement as migrants fill facilities for the homeless — one with a controversial track record in ruling on housing rights.
Acting Manhattan Supreme Court Justice Gerald Lebovits, assigned Friday to the case known as Callahan v. Carey, once upheld the eviction of a mentally ill man who kept his belongings in an apartment but lived primarily in the streets.
Lebovits is taking over from Justice Erika Edwards, who last week recused herself due to an unspecified conflict she said could raise questions about her objectivity in the case.
In a 1981 consent decree, Callahan v. Carey created the city’s practice of providing shelter to any single adult who requests it. Later agreements extended rights to families with children.
The decades-old case is now at the center of the storm over Mayor Adams’ ongoing efforts to address the wave of migrants to New York City that began in spring 2022 and has since overwhelmed the city’s homeless shelter system.
On Tuesday, the Adams administration asked the court to let the city temporarily pause the right to shelter requirement going forward if the intake of newly arriving adults hits a certain threshold. The Legal Aid Society and the Coalition for the Homeless immediately condemned the request, charging that it would let the city bar anyone at will — not just migrants — from obtaining shelter.
Legal Aid is set to file a response opposing the city’s request next week. Judge Lebovits will now take over after he was appointed by Chief Judge Debra Kaplan via random selection.
In a 2005 opinion, Lebovits found that a mentally ill man, Michael Tsitsires, had forfeited his right to stay in a rent-stabilized single room occupancy unit in Midtown because of his homeless lifestyle, writing, “The court is not condemning the respondent to a life of homelessness. Whether by choice or circumstance, the respondent is already homeless.”
Lebovits’ ruling was reversed by a three-judge panel on appeal, with the appellate division judges criticizing his decision, declaring that it amounted to a “judicial finding that (the) tenant maintains his primary residence on a park bench.” The full appellate division panel then reinstated Lebovits’ original ruling.
The 2005 case focused on Tsitsires, a man with mental illness who was renting a $104-a-month SRO unit in Midtown but chose to spend nearly all of his time living on the streets within 10 blocks of his apartment building that he deemed to be a “safe area.” He kept all his belongings in the unit, received his mail there and used it to take showers, but said he suffered from claustrophobia and could not live there.
His landlord, TOA Construction Co., sued to evict him, arguing that because he lived in the streets the apartment was no longer his primary residence, violating a requirement for tenants living in rent stabilized housing.
During a six-day non-jury trial, Lebovits — then a civil court judge — visited the SRO apartment and found it to be “uninhabitable.” He also questioned Tsitsires at a hotel within the man’s “safe area,” not requiring him to come to court. The judge then ruled in favor of the landlord, writing that TOA had shown the man “did not use the apartment as his primary residence,” and that he “maintained a homeless lifestyle likely caused, one psychiatrist explained, by substance abuse.”
In his July 2005 ruling Lebovits found that the man’s mental illness did not “constitute an excusable reason for his absence from the subject apartment.” He noted that two psychiatrists who testified the Tsitsires “would not take his medication or undergo treatment that might allow him to return to the apartment permanently.”
The judge also noted that his decision returned a rent-regulated unit to the marketplace to provide affordable housing to those who need it.
In December 2006, the three-judge appellate court panel reversed Lebovits by a vote of 2-1, rejecting Lebovits’ ruling and declaring that the tenant’s “substantial emotional difficulties” prevented him from actively using the apartment, and therefore the “tenant’s absences must be deemed excusable.”
The appeals court described Lebovits’ ruling as a “judicial finding that [the] tenant maintains his primary residence on a park bench,” and dismissed the landlord’s eviction petition. TAO then asked the full five-judge appeals panel to revisit the case.
In July 2008 the full appeals court panel reversed by 4-1 the appellate division’s ruling and affirmed Lebovits’ original decision. The opinion, written by Judge David Saxe, stated, “The laws of rent stabilization do not allow for the indefinite retention of the right to rent-stabilized premises by a tenant who does not actually reside in the premises and has no intent to return to reside there at any point in the future. This is no less true where, as here, the tenant’s inability to ever reside there is caused by his mental illness.”
On Friday THE CITY asked a spokesperson for the court system if Lebovits wanted to comment on the TOA Construction case. He declined to respond.