Petitioners, six individuals who were convicted of sex offenses, commenced this self-styled CPLR article 78 proceeding against respondents Anthony J. Annucci, Acting Commissioner of the New York State Department of Corrections and Community Supervision (DOCCS), and Tina M. Stanford, Commissioner of the New York State Board of Parole (collectively, State respondents), and Steven R. Banks, Commissioner of the New York City Department of Social Services and the New York City Human Resources Administration (collectively, City respondents), challenging their continued confinement at a DOCCS facility after the expiration of their determinate sentences.

Petitioners claim that they have been illegally confined in a facility designated by DOCCS as a residential treatment facility at the Fishkill Correctional Facility, instead of being released to the community under post-release supervision, beyond the six-month period prescribed by statute as a result of respondents' inadequate efforts to find them suitable housing that complies with the Sexual Assault Reform Act (Executive Law § 259-c [14] [SARA]). They further claim that the residential treatment facility where they were unlawfully confined is not community-based and does not provide re-integration opportunities as required by statue. And they claim that the City respondents "are complicit" in this illegality because they have failed to provide enough shelter locations in New York City to accommodate the release of petitioners and other offenders with SARA-compliant housing. While styling their claims as an article 78 petition, they seek declaratory and injunctive relief, as well as class certification.

The State and City respondents have answered and moved to dismiss. For the reasons stated below, respondents' motions are granted in part and denied in part. The Court concludes that the petition presents issues that are novel and of public importance, and capable of repetition yet evading review. The Court denies the petition to the extent that it claims petitioners were unlawfully detained at the Fishkill Residential Facility beyond the six-month period prescribed by Penal Law § 70.45 (3). The Court also denies the petition insofar as it seeks relief against the City respondents.

With regard to petitioners' claim that the Fishkill Residential Treatment Facility does not offer programming and employment opportunities in compliance with the statutes governing residential treatment facilities, the Court finds that petitioners have raised material questions of fact. The Court will convert the proceeding to a declaratory judgment action to allow that claim [*2]to proceed. Because the Court concludes that a declaratory judgment will adequately protect the interests of similarly situated offenders, it denies the application for class certification. The Court will, however, permit liberal amendment of the pleadings to add new parties to prosecute that claim.

Petitioners were convicted of sex offenses that resulted in determinate prison sentences followed by specified periods of post-release supervision. Petitioners Richard Alcantara, David Sotomayor, and Lester Classon completed their determinate terms of imprisonment, but were required to remain in DOCCS's custody at the Fishkill Residential Treatment Facility (Fishkill RTF) for several months beyond the six-month post-release supervision period authorized by Penal Law § 70.45 (3) due to delays in finding SARA-compliant housing before they were released to the community. Petitioners Jackson Metellus, Cesar Molina and Carlos Rivera were previously confined in the Fiskill RTF but are now being detained as a result of parole violation proceedings commenced against them due to misbehavior while they were confined there. Petitioners assert that they are representative of persons who allegedly have been or are being illegally detained at the designated residential treatment facilities at the Fishkill Correctional Facility and at Woodbourne Correctional Facility.

Petitioners claim that they were illegally detained in the Fishkill RTF beyond the six-month period prescribed by statute. Penal Law § 70.45 (3) authorizes the Board of Parole to "impose as a condition of post-release supervision that for a period not exceeding six months immediately following release from the underlying term of imprisonment the person be transferred to and participate in the programs of a residential treatment facility." Petitioners claim that the State respondents, as a matter of law, lack statutory authority to detain them in an RTF beyond the six-month period authorized by Penal Law § 70.45. In addition, petitioners' offenses render them subject to the provisions of the Sexual Assault Reform Act (SARA), which prohibit them from living or entering within 1,000 feet of school grounds when they are released to the community (Executive Law § 259-c [14]). Petitioners claim that even if the State respondents had authority to detain them beyond this six-month period, they did so unlawfully because State and City respondents have not met and are not meeting their statutory obligations to help them find SARA-compliant housing.

The State respondents argue that Correction Law § 73 (10) provides independent authority to confine persons subject to post-release supervision [*3]in residential treatment facilities beyond the six-month period authorized by Penal Law § 70.45 (3). Further, respondents maintain that they have made reasonable efforts to assist petitioners and other persons subject to SARA restrictions obtain suitable housing.

DOCCS has designated certain areas at the Fishkill and Woodbourne Correctional Facilities to be residential treatment facilities (7 NYCRR 100.50 [c] [2], 100.90 [c] [3]; DOCCS Directive Nos. 0051, 0059). Petitioners claim that despite the designation, the facilities do not comply with governing statutes. Correction Law § 2 (6) defines a "residential treatment facility" as a "correctional facility consisting of a community based residence in or near a community where employment, educational and training opportunities are readily available for persons who are on parole or conditional release and for persons who are or who will soon be eligible for release on parole who intend to reside in or near that community when released." Residents of such facilities may be "allowed to go outside the facility during reasonable and necessary hours" and are entitled to "appropriate education, on-the-job-training and employment" (Correction Law § 73 [1], [2] and [3]). Petitioners contend that the RTFs at Fishkill and Woodbourne are located many miles from their home communities, and therefore are not "community based residences." Further, petitioners claim, they are treated much the same as persons serving prison sentences, there is little or no opportunity for employment, education, or training in the communities near these facilities, and there is inadequate opportunity for on-the-job training and employment within the facilities themselves.

Petitioners propose two classes. They propose Class 1 to be comprised of "persons who have completed their sentence of incarceration, are now serving their post release supervision sentences, are subject to the SARA residency restriction, and who are currently required to reside at one of the purported RTFs." They propose subclass 1a to be comprised of "members of Class 1 who have been required to reside at one of the purported RTFs for more than six months beyond the end of their term of imprisonment." And they propose Class 2 to be comprised of "persons who are currently required to reside at the purported RTFs after completing a parole/PRS violation time assessment imposed by an Administrative Law Judge."

The petition alleges that the number of persons in DOCCS-designated residential treatment facilities has hovered between 80 and 95 over the past couple of years. And it asserts that the median length of stay beyond the six-[*4]month statutory period was 61 days, but that nine inmates had been detained for more than six months beyond the six-month statutory period.

Respondents argue that the petition is moot. They contend that this proceeding is moot as to petitioners Alacantera, Sotomayor, and Classon because they are no longer confined in the Fishkill RTF and are now residing in SARA-compliant housing in New York City. They argue further that this proceeding is moot as to petitioners Metellus, Rivera, and Molina because they are now confined as a result of parole revocation proceedings commenced against them while they were residing at the Fishkill RTF. The Court agrees that, technically, these claims are moot.

But the fact that the claims of all six petitioners are mooted by their change in status only underscores the transient nature of these types of claims—they generally remain viable only for a matter of months. Moreover, whether petitioners and those similarly situated are released from the RTF to the community is largely in the control of the State respondents. It is true, as demonstrated by the cases cited below, that similar claims have been adjudicated time and time again, both in article 78 proceedings and habeas corpus proceedings. But the courts have reached conflicting results, and the parties have pointed to no appellate authority resolving these issues. It appears that the claims may have become moot before the appellate courts can review them. The Court concludes that at least some of the issues presented in this case are novel, of public importance, and capable of repetition yet evading review, and will address them here pursuant to the exception to the mootness doctrine (Hearst Corp. v Clyne, 50 NY2d 707, 714—715 [1980]; see People ex rel. Green v Superintendent of Sullivan Correctional Facility, 137 AD3d 56, 58 [3d Dept 2016]).

The respondents argue also that the claims of petitioners Molina, Metellus, and Rivera should be dismissed because they previously commenced article 78 proceedings in Dutchess County Supreme Court against the State respondents raising similar claims, all of which have now been resolved against them at the supreme court level. But in each of those proceedings, petitioners challenged the jurisdictional basis for parole revocation determinations, alleging that the Fishkill RTF is not a "legitimate" residential treatment facility and that they in fact were inmates in a secure prison, not under parole supervision. The courts denied their petitions on the ground that DOCCS had duly designated the Fishkill Correctional Facility as a residential treatment facility pursuant to [*5]Penal Law § 70.45 (3) and 7 NYCRR 100.90 (c) (3). The courts found no occasion to go further and address the specific claim raised here—that the Fishkill RTF does not meet the statutory criteria for an RTF (see Matter of Molina v Annucci, Sup Ct, Dutchess County, September 30, 2016, Foreman, J., index No. 302/2016, **6—7; Matter of Metellus v Annucci, Sup Ct, Dutchess County, August 18, 2016, Posner, J., index No. 563/2016; Matter of Rivera v Annucci, Sup Ct, Dutchess County, June 21, 2016, Brands, J., index No. 412/2016). Nor did the courts squarely address petitioners' claims that the State respondents had no authority to hold them beyond six months. While the court in Matter of Molina v Annucci, discussed that issue, it was an alternative holding and therefore dictum (**7—8). Thus, the identical issues were not actually and necessarily decided in these prior cases; they cannot be given collateral estoppel effect (see Jeffreys v Griffin, 1 NY3d 34, 39 [2003]).

The Court agrees with the State respondents that petitioners lack standing to raise their RTF-compliance with regard to the Woodbourne RTF, either individually or in a representative capacity. Petitioners argue that, like the Fishkill RTF, the Woodbourne RTF is not community-based and does not provide opportunities required by statute. But the petition does not allege that any of the petitioners were confined to the Woodbourne RTF. And their argument that the RTF-compliance claim is imbued with questions of fact undermines their argument that any decision in this case would be determinative of the Woodbourne RTF-compliance claim. Furthermore, petitioners' timely-release claims may be determined without regard to the RTF where a similarly situated person resides. The Court therefore dismisses all claims related to the Woodbourne RTF.

Finally, the Court grants the State respondents' motion to dismiss the verified amended petition. Petitioners cannot add new parties in an article 78 proceeding without obtaining leave of the court (see CPLR 401; Matter of Czajka v Dellehunt, 125 AD3d 1177, 1181 [3d Dept 2015]). In any event, petitioners have stated that they do not wish to pursue the verified amended petition because the newly named petitioners have been released or transferred from the Fishkill RTF.

Petitioners argue that respondents have detained them in a residential treatment facility beyond the six-month period authorized by statute. Their argument has two parts. First, petitioners maintain that, as a matter of law, the [*6]State respondents lack statutory authority to hold them in a residential treatment facility beyond six months. Second, they claim that even if there were such authority, the respondents have unlawfully detained them in a residential treatment facility beyond the six-month period due to respondents' failure to fulfill their statutory mandate to assist them in finding SARA-compliant housing.

Petitioners have requested declaratory and injunctive relief, which are unavailable in an article 78 proceeding (CPLR 7803 [1], [2], [3]). Because the Court rejects petitioners' timely release claims on the merits within the context of the article 78 proceeding, it finds no occasion to convert their timely release claims to an action for declaratory and injunctive relief.

The Court rejects petitioners' argument that as a matter of law the State respondents have no authority to confine petitioners in a residential treatment facility for more than six months after the expiration of their determinate sentence of imprisonment. Penal Law § 70.45 (3) authorizes the Board of Parole, with respect to any individual sentenced to a determinate sentence followed by a period of post-release supervision, to "impose as a condition of post-release supervision that for a period not exceeding six months immediately following release from the underlying term of imprisonment the person be transferred to and participate in the programs of a residential treatment facility." This section permits the Board of Parole to impose as a mandatory condition of post-release supervision the requirement of residence and participation in a residential treatment facility on individuals who have completed their determinate sentence, regardless of whether there may be suitable housing and treatment plans in the community at large.

Correction Law § 73 is broader. Subdivision (1) authorizes the Commissioner of DOCCS to confine certain individuals who are or who will soon be eligible for community supervision at a residential treatment facility:

"The commissioner may transfer any inmate of a correctional facility who is eligible for community supervision or who will become eligible for community supervision within six months after the date of transfer or who has one year or less remaining to be served under his or her sentence to a residential treatment facility and such person may be allowed to go outside the facility during reasonable and necessary hours to engage in any activity reasonably related to his or her rehabilitation and in accordance with the program established for him or her. While outside the facility he or she shall be at all times in the custody of the department and under its supervision."

"The commissioner is authorized to use any residential treatment facility as a residence for persons who are on community supervision. Persons who reside in such a facility shall be subject to conditions of community supervision imposed by the board."

The Penal Law and Correction Law provisions can be '"harmonize[d]"' and '"construe[d] in a way that renders them internally compatible'" (Matter of Mariah Corrigan v NY State Off. of Children and Family Servs., __ NY3d __, 2017 Slip Op 01020 [February 9, 2017], quoting Matter of Dutchess County Dept. of Social Servs. ex rel. Day v Day, 96 NY2d 149, 153 [2001]). Penal Law § 70.45 (3) plainly authorizes the Board of Parole to mandate six months of confinement in a residential treatment facility upon completion of a determinate sentence as a condition of release to post-release supervision. Correction Law § 73 does not allow long-term mandatory confinement in a residential treatment facility, but it appears to allow DOCCS to use the residential treatment facility as a stop-gap residence for persons who are on community supervision under certain circumstances, such as when persons are unable to meet the conditions of community supervision imposed by the Board of Parole. For example, although the issue was uncontested, the Appellate Division, Third Department in People ex rel. Green v Superintendent of Sullivan Correctional Facility ordered a convicted sex offender who had completed his term of imprisonment more than six months earlier to "be released to either suitable [SARA-compliant] housing or a residential treatment facility pursuant to Penal Law § 70.45 (3) and Correction Law § 73 (10)" (137 AD3d at 60).

Reading the two statutes together in this way does not render the six-month limitation of Penal Law § 70.45 (3) "devoid of meaning," as petitioners argue. Once the six-month period authorized by Penal Law § 70.45 (3) lapses, under Correction Law § 73, DOCCS may require the person to remain in such a facility only until he, with appropriate assistance from DOCCS, complies with the Board of Parole's requirements for an approvable release plan, including suitable housing. Once such conditions are satisfied, DOCCS would have no ability to require confinement in the designated residential treatment facility. It would make no sense to read Penal Law § 70.45 (3) as a limitation on DOCCS's authority to house sex offenders who have been unable to find suitable housing in a residential treatment facility, where no such limitation is placed on its ability to detain others who are eligible for release to the community but who are unable to comply with conditions imposed by the Board of Parole.

Indeed, the majority of trial court decisions addressing this issue have held that Correction Law § 73 (10) provides authority to hold sex offenders beyond six months when suitable housing has not yet been arranged (e.g., Matter of Phillips v NY State Bd. of Parole, Sup Ct, Dutchess County, January 22, 2016, Pagones, J., index No. 3622/2015, *2; People ex rel. Roldan v Superintendent, Hudson Corr. Facility, Sup Ct, Columbia County, June 4, 2015, Nichols, J., index No 8430-15, **1—2; People ex rel. Johnson v Superintendent, Fishkill Corr. Facility, 47 Misc 3d 984, 988—989 [Sup Ct, Dutchess County 2015]; People ex rel. White v Superintendent, 45 Misc 3d 1202[A], [Sup Ct, Sullivan County 2014]; People ex rel. Anderson v Superintendent, Fishkill Corr. Facility, Sup Ct, Dutchess County, November 17, 2014, Pagones, J., index No 3878/2014, *3; People ex rel. Vega v Superintendent, Fishkill Corr. Facility, Sup Ct, Dutchess County, October 27, 2014, Sproat, J., index No. 3759/2014, *3; but see People ex rel. McCurdy v Warden, Westchester County Corr. Facility, Sup Ct, Westchester County, January 11, 2016, Zambelli, J., index No. 15/3558, **7—8, appeal pending; People ex rel. Scarberry v Connolly, Sup Ct, Dutchess County, November 21, 2014, Rosa, J., index No. 3963/14). Accordingly, the Court denies petitioners' application to compel the State respondents to release petitioners and other offenders from residential treatment facilities upon the expiration of six months regardless of whether they have found suitable housing.

Petitioners' second timeliness claim is that, even if the State respondents have authority to confine petitioners in a residential treatment facility beyond six months, the continued confinement of petitioners was unlawful because respondents have not met their statutory obligations to help petitioners find SARA-compliant housing.

"The department shall assist inmates eligible for community supervision and inmates who are on community supervision to secure employment, educational or vocational training, and housing" (Correction Law § 201 [5]; see Correction Law § 203 [1]; Executive Law § 243 [4]; 9 NYCRR 365.3 [d] [v], 8000.1 [b] [5], 8002.7 [d] [v]). The Appellate Division, after recently noting the dilemma facing DOCCS when sex offenders are unable to find SARA-compliant housing, reiterated that DOCCS must meaningfully assist sex offenders in their endeavors to find suitable housing:

"Public safety unquestionably remains the primary concern in the management of sex offenders, but the 'accepted wisdom in the criminal justice community and among experts that offenders are less likely to recidivate when they are provided with suitable housing and employment' [*7]is also recognized . . . . Accordingly, we reiterate that, although petitioner is obligated to identify suitable housing, DOCCS remains statutorily obligated to assist in the process."

(People ex rel. Green, 137 AD3d at 60 [internal quotation marks omitted]; see People v Diack, 24 NY3d 674, 682—683 [2015]; cf. Matter of Boss v NY State Div. of Parole, 89 AD3d 1265, 1266 [3d Dept 2011] [rejecting contention that DOCCS had a duty to secure acceptable housing for parolee]).

Petitioners have pointed to no statute or regulation that requires DOCCS to identify suitable housing in the first instance or to ensure that suitable housing is available when an inmate is eligible to be released to the community. In other words, petitioners have not demonstrated that they have a clear legal right to an order requiring DOCCS to identify or ensure the provision of SARA-compliant housing once the six-month period set forth in Penal Law § 70.45 (3) has lapsed; thus there is no basis for this Court to grant petitioners' application for systemic relief in the form of mandamus to compel.

The Court can, however, review whether DOCCS has acted arbitrarily and capriciously or contrary to law in detaining individual sex offenders due to its failure to meaningfully assist them in their efforts to find SARA-compliant housing in an article 78 proceeding, or it may do so in the context of a petition for writ of habeas corpus, but such challenges must be determined based on the circumstances of each case (see e.g., Matter of Boss, 89 AD3d at 1266; Matter of Phillips, at *2; Matter of Gonzalez v Annucci, Sup Ct, Albany County, July 9, 2015, Hard, J., index No. 6610-14, **11—12; People ex rel. White, 45 Misc 3d 1202[A]; People ex rel. Khan v Superintendent, Hudson Corr. Facility, Sup Ct, Columbia County, October 1, 2014, Koweek, J., index No. 7925-14, *6).

Here, the State respondents submitted an affidavit outlining their efforts to help locate SARA-compliant housing for petitioners, supported by records memorializing meetings and communications with petitioners. Respondents explain that persons about to be released to the community meet at least bi-weekly with the Offender Rehabilitation Coordinator at the facility where they are confined to help identify suitable housing when they are released to the community. After the inmate proposes a potential residence, the coordinator communicates, "on a priority basis," with an assigned parole officer in the community who then ascertains the suitability of the proposed residence, both for compliance with SARA and otherwise (DOCCS's Pre-Release Screening Policy and Procedure [February 25, 2014, rev October 21, 2014]; see Correction Law § 203). Once suitable housing is identified, the coordinator and parole officer work together to prepare the necessary documents so that the offender can be released to the community pursuant to a post-release supervision plan.In addition, according to the affidavit of DOCCS Associate Commissioner of Population [*8]Management Ann Marie McGrath, DOCCS has "partnered" with the New York City Department of Homeless Services to help provide housing in SARA-compliant shelters in New York City. When spaces become available at these shelters, offenders who have resided for the longest time in a DOCCS-designated residential treatment facility are given priority. A parole officer accompanies the offender to the City's Bellevue Men's Shelter to complete the intake process and then travels with him to the SARA-compliant residence, where he is assigned a new parole officer.

Respondents have produced printouts documenting communications regarding petitioners and their attempts to ascertain the suitability of any proposed residences. It is true that this documentation often recites merely that petitioners have proposed no potential residence, and this Court has concerns about whether DOCCS should be doing more when an offender languishes unreasonably long in a designated residential treatment facility, given its prison-like environment. But here, the process worked to help three of the petitioners find suitable housing, albeit several months after the statutory six-month period lapsed, in shelters operated by the City respondents after petitioners were unable to propose suitable housing, and the three others were detained for alleged parole violations. Under these circumstances, petitioners have not demonstrated that respondents acted arbitrarily or capriciously or contrary to law by confining them at the Fishkill RTF until they found SARA-compliant housing.

Petitioners claim that while DOCCS has designated the Fishkill Correctional Facility as a residential treatment facility, residents are treated as prison inmates and are not provided reintegration programming required by law. The Court concludes that there are questions of fact on this issue, and declines to grant the State respondents' motion to dismiss petitioners' RTF compliance claim. Moreover, because appropriate article 78 relief cannot be awarded on this claim, the Court converts the article 78 proceeding to a declaratory judgement action to further litigate this claim.

The purpose of a residential treatment facility is to prepare those who have completed or are about to complete their terms of imprisonment for reintegration into the community. Correction Law § 2 (6) defines "residential treatment facility" as:

"6. A correctional facility consisting of a community based residence in or near a community where employment, educational and training opportunities are readily available for persons who are on parole or conditional release and for persons who are or who will soon be eligible for [*9]release on parole who intend to reside in or near that community when released."

"1. The commissioner may transfer any inmate of a correctional facility who is eligible for community supervision or who will become eligible for community supervision within six months after the date of transfer or who has one year or less remaining to be served under his or her sentence to a residential treatment facility and such person may be allowed to go outside the facility during reasonable and necessary hours to engage in any activity reasonably related to his or her rehabilitation and in accordance with the program established for him or her. While outside the facility he or she shall be at all times in the custody of the department and under its supervision."

"2. The department shall be responsible for securing appropriate education, on-the-job training and employment for inmates transferred to residential treatment facilities. The department also shall supervise such inmates during their participation in activities outside any such facility and at all times while they are outside any such facility."

"3. Programs directed toward the rehabilitation and total reintegration into the community of persons transferred to a residential treatment facility shall be established. Each inmate shall be assigned a specific program by the superintendent of the facility and a written memorandum of such program shall be delivered to him or her."

DOCCS has designated a number of facilities throughout the State as residential treatment facilities. Among them, DOCCS has designated the Fishkill Correctional Facility, a medium security facility located in the City of Beacon in Dutchess County, as a "general confinement facility," a "work release facility," and a "residential treatment facility" (7 NYCRR 100.90 [c] [3]; Directive No. 0051). DOCCS asserts that it has designated the Fishkill RTF as a residential treatment facility based on its relative proximity to New York City and other communities where offenders intend to return, programming availability, and the adequacy of staffing for work crews.

Petitioners claim, however, that while in the Fishkill RTF, they were treated as inmates in a prison-like setting, far from the communities where they intend to return; that they were not offered meaningful programming or work opportunities; and that they were required to repeat classes offered in prison and given menial assignments such as janitorial work within the prison confines for just a couple of hours each day. They aver that RTF residents are subject to the same institutional rules and disciplinary proceedings as inmates in general [*10]confinement, and share the same gym, exercise yard and mess hall. They wear the same green uniforms and are subject to the same daily count as inmates in the general population. They claim they are offered the same programming as the inmates in general confinement. Petitioners assert that the only employment offered to RTF residents is a "porter pool," where they are able to perform menial janitorial jobs for a couple hours per day; and that they generally are unable to obtain permission to participate in work details outside of the facility.

The State respondents counter that they are committed to providing education and training to RTF residents, and they point to Directive No. 0051, which lists the programs available at the facility. Respondents assert that they offer an RTF work program that is not available to inmates, where RTF residents are paid $10 per day, a rate far higher than that paid to inmates. RTF residents are transported from the facility once each week to visit parole officers. The Fishkill Correctional Facility contains a "sex offender dorm" that houses 29 RTF residents separately from the general population (petitioners claim the dorm area is insufficient to accommodate all similarly situated RTF residents). As petitioners point out, the State respondents have provided few other specific factual averments to counter the allegations in the petition about the kinds of programming and work opportunities available to RTF residents.

The litigants also point to conflicting decisions on this issue. In some cases, the courts, looking beyond DOCCS's designation, have rejected claims that Fishkill RTF is essentially the same as a prison and not a true residential treatment facility that complies with the statutes (Matter of Bennett v Annucci, Sup Ct, Dutchess County, June 3, 2016, Egitto, J., index No. 214/2016, *6; Matter of Phillips, at *3). On the other hand, at least one judge has held after an evidentiary hearing that Fishkill Correctional Facility did not meet the statutory requirements for a residential facility (see People ex rel. Scarberry, at *4; People ex rel. Simmons v Superintendent, Fishkill Correctional Facility, Sup Ct, Dutchess County, August 15, 2014, Rosa, J., index No. 3803/14).^[FN1]

This Court concludes that petitioners have alleged a claim for a declaration that the Fishkill RTF does not comply with the statutes governing residential treatment facilities. The Court also concludes that questions of fact preclude a decision on this issue based solely on the conflicting accounts set forth in the parties' papers. The Court will therefore convert this claim to a declaratory judgment action and hold an evidentiary hearing before resolving petitioners' Fishkill RTF compliance claim.

Petitioners seek declaratory and injunctive relief against the City respondents. As with the timely release claims, the Court has analyzed the claims against the City respondents within the context of the article 78 proceeding and, ruling against the petitioners on the merits, finds no occasion to convert that portion of the petition that asserts claims against the City respondents to an action.

Petitioners allege that the City respondents have failed to meet their legal obligation to provide housing assistance to them and those similarly situated, in violation of 18 NYCRR 352.36 (a) (4) (iii), which states: "All social service districts are required by statute, regulation and directive to arrange temporary housing assistance for eligible homeless individuals, including those who are sex offenders." In addition, petitioners rely on a consent decree issued in Callahan v Carey (New York County, October 18, 1979, index No. 42582-79), which states: "The City defendants shall provide shelter and board to each homeless man who applies for it provided that (a) the man meets the need standard to qualify for the home relief program established in New York State; or (b) the man by reason of physical, mental or social dysfunction is in need of temporary shelter." Petitioners allege that the City Department of Homeless Services has instituted a policy of accepting only ten new individuals subject to SARA each month, notwithstanding their capacity to house more.

The City respondents assert that they operate numerous shelters, which provide beds for just under 13,000 single adults. Many of the shelters have programming for sub-populations with specific needs. The City respondents operate seven SARA-compliant shelters for single adult men. They collaboratively work with DOCCS and parole officers to help provide SARA-compliant housing for sex offenders who are eligible for post-release supervision. They assert that they no longer limit their reception to ten offenders per month and have worked to open up additional space in approved shelters.

The City respondents argue further that they are working with DOCCS to reasonably find shelter for petitioners and those similarly situated after balancing the concerns reflected in the regulations. They point to 18 NYCRR [*11]352.36 (a) (4) (ii) and (vi), which provide:

"(ii) All reasonable efforts should be made to avoid an ill-advised concentration of sex offenders in certain neighborhoods and localities. What constitutes such a concentration will depend on many factors, and may vary depending on housing availability and the locality and community. In addition, it is sometimes safer to house sex offenders together. Law enforcement, probation, and parole officers may more effectively monitor offenders, and service providers may more easily offer transitional services to offenders in these congregate settings. Further, some social service officials and departments rely on congregate housing for sex offenders who seek emergency shelter because of the limited, or lack of other housing options available for this population. All public officials who are responsible for finding or approving housing for sex offenders should recognize that an over-concentration of sex offenders may create risks and burdens on the surrounding community, and that their responsibility is to make judgements that are reasonable under the circumstances."

"(vi) Decisions as to the housing and supervision of sex offenders should take into account all relevant factors and no one factor will necessarily be dispositive. These factors should include, but not be limited to, the factors enumerated in the statute, the risk posed by the offender, the nature of the underlying offense, whether housing offenders together or apart is safer and more feasible, the most effective method to supervise and provide services to offenders, and the availability of appropriate housing, employment, treatment and support."

Indeed, after balancing these factors, the City respondents in collaboration with the State respondents placed three named petitioners (Classen, Sotomayor, and Alcantara) in DHS's approved shelters. The City respondents assert that they have received no shelter applications from the other named petitioners.

The Court therefore rejects petitioners' request for a court order requiring the City respondents to open up 75 additional SARA-compliant shelter beds. The Court has already rejected petitioners' systemic timely release claim because they have not shown that DOCCS acted unlawfully in detaining them beyond six months where they reasonably investigated all proposed alternatives and when those proved unsuitable, assisted petitioners in obtaining placement in shelters operated by the City respondents. The Court concludes similarly that petitioners have not shown a clear legal right to the systemic relief they seek against the City respondents.

The Court has concluded that DOCCS has authority to detain petitioners and other sex offenders, just as it does others who are subject to conditions set by the Parole Board, in residential treatment facilities beyond the six-month period set forth in Penal Law § 70.45 (3); and that petitioners did not show that respondents acted arbitrarily or capriciously or contrary to law by holding them longer than that while it helped them find SARA-compliant housing. Thus, there is no need to consider petitioners' application for class certification concerning their timely release claims.

The issue of class certification remains, however, concerning petitioners' Fishkill RTF-compliance claim. Petitioners propose Class 1 to be comprised of "persons who have completed their sentence of incarceration, are now serving their post release supervision sentences, are subject to the SARA residency restriction, and who are currently required to reside at one of the purported RTFs." And they propose Class 2 to be comprised of "persons who are currently required to reside at the purported RTFs after completing a parole/PRS violation time assessment imposed by an Administrative Law Judge." Given the Court's ruling above, the Court will limit its consideration of each proposed class to persons who are required to reside at the Fishkill RTF.

CPLR 901 (a) sets forth five prerequisites to class certification:

1. the class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable;

2. there are questions of law or fact common to the class which predominate over any questions affecting only individual members;

3. the claims or defenses of the representative parties are typical of the claims or defenses of the class;

4. the representative parties will fairly and adequately protect the interests of the class; and

5. a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

"These factors are commonly referred to as the requirements of numerosity, commonality, typicality, adequacy of representation and superiority" (City of NY v Maul, 14 NY3d 499, 508 [2010]). The determination of whether a lawsuit qualifies as a class action under the statutory criteria '"ordinarily rests within the sound discretion of the trial court'" (id. at 509, quoting Small v Lorillard Tobacco Co., 94 NY2d 43, 52 [1999]). The Court finds that the statutory criteria of commonality and typicality are met; the others warrant further discussion.

The question whether this limited claim that the Fishkill RTF is not statutorily compliant meets the criterion of numerosity is a close question. The parties' submissions establish that the Fishkill RTF involves 29 beds for sex [*12]offenders in dorm-like setting, although petitioners allege that it does not accommodate all sex offenders who are required to reside there pursuant to Penal Law § 70.45 (3) or Correction Law § 70 (10). Of course, the number of such sex offenders who are subject to the allegedly unlawful conditions at the Fishkill RTF each year is greater than that due turnover when some are released to the community. In light of petitioners' assertion that most residents are released to the community within 61 days after the six-month period has expired, the Court finds that roughly 50 residents each year are likely to be similarly situated to the petitioners. Arguably, this number meets the numerosity criterion for granting class certification (see Borden v 400 E. 55th St. Assoc., L.P., 24 NY3d 382, 399 [2014]).

Next, the question whether the named petitioners will fairly and adequately protect the interests of the class requires some discussion, now that three of them have been released from the Fishkill RTF and the other three are being detained for parole violations. The named petitioners may lose interest in prosecuting this case, and in testifying at an evidentiary hearing about the programming and conditions at the Fishkill RTF. This concern, however, may be cured at least in part by allowing the liberal substitution or the addition of parties who are still being detained at the Fishkill RTF. And petitioners are represented by experienced counsel with adequate resources to represent the class and who have made serious efforts to litigate this claim. Arguably, petitioners meet the adequacy of representation criterion.

The final question is whether a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The State respondents argue that it is not superior in light of the "government operations rule" because the proposed class of litigants will be protected by principles of stare decisis (see Jones v Berman, 37 NY2d 42, 57 [1975]; De Zimm v NY State Bd. of Parole, 135 AD2d 66, 68 [3d Dept 1988]). In response, petitioners rely on Hurrell-Harring v State of New York (81 AD3d 69, 74—76 [3d Dept 2011]), where the Third Department eschewed the government operations rule in favor of class action as the superior mechanism for addressing system-wide failure to provide adequate indigent defense counsel.

But the claim in this case is unlike the widespread, systemic deficiencies alleged in Hurrell-Harring. The claim here is limited to the conditions at a single correctional facility that affect several dozens, not thousands, of potential complainants. Furthermore, the concerns driving the Third Department to "conclude that the unique circumstances of [that] case render a class action superior to other methods of adjudicating [that] controversy" are not present here (id. at 76). Rather, where, as here, the defendants are State agencies, a [*13]declaratory judgment, combined with the doctrine of stare decisis, will adequately protect the rights of the named plaintiffs and those similarly situated (see DeZimm, 135 AD2d at 68). Class certification is not the superior method for litigating the sole claim remaining in this case. As a result, the Court declines to grant class certification.

Accordingly, it is

1. Order to Show Cause and Verified Petition

2. Notice of Amended Motion for Class Certification

3. Affirmation of Matthew Freimuth in Support of Amended Motion forClass Certification, with Exhibit

4. Memorandum of Law in Support of Motion for Class Certification

5. Memorandum of Law in Support of Amended Motion for ClassCertification

6. Reply Memorandum of Law in Further Support of Verified Petition

7. Reply Memorandum of Law in Further Support of Motion for Class Certification

8. Unreported Decisions in Support of Reply Memorandum of Law in Support of Petition

1. Affirmation of Terrence X. Tracy in Opposition to Petition

2. Affidavit of Anne Marie McGrath in Opposition to Petition

3. Affidavit of Steven Claudio

4. Exhibits to Tracy Affirmation, McGrath Affidavit, and Claudio Affidavit, A—V

5. Memorandum of Law in Opposition to Petition

6. Affirmation of Terrence X. Tracy in Opposition to Class Certification,with Exhibits A—E

7. Affirmation of Richard Lombardo in Opposition to Class Certification,with Exhibits A—D

8. Memorandum of Law in Opposition to Class Certification

9. Notice of Motion to Dismiss Amended Petition and Affirmation in Support, with Exhibits A—B

1. Commissioner Banks's Verified Answer

2. Memorandum of Law in Support of Answer

3. Affirmation of Eric Porter in Support of Answer, with Exhibit A

4. Affirmation of Tonie Baez in Support of Answer

5. Affirmation of Lesley Mbaye in Opposition to Class Certification, withExhibit A

6. Notice of Motion to Dismiss Verified Petition, with Affirmation ofLesley Mbaye and Exhibit A