Upon the foregoing papers, the motions are determined as follows:

Plaintiff Miah Hedgepeth commenced this action on January 4, 2001, against the New York State Office of Temporary and Disability Assistance (OTDA) and its Acting Commissioner, Robert Doar (formerly Brian Wing). In her complaint, plaintiff alleges that defendants violated the rights of public assistance families under state Social Services Law, state Executive Law, federal Fair Housing Laws and the 1964 Civil Rights Act by failing to promulgate shelter allowance schedules that would allow them to obtain and retain decent, safe and adequate housing in racially and economically mixed neighborhoods in Westchester County. Plaintiff further alleges that defendants' policy of maintaining public assistance families faced with imminent homelessness in "emergency housing accommodations," including shelters, motels, and hotels, is a violation of their rights under Social Services Law.

Plaintiff's situation typifies that of the numerous individuals who have brought similar claims in their own actions. An unemployed, single mother, plaintiff currently receives $314 in shelter allowance per month for a one-bedroom apartment located in Yonkers, New York, which rents for $750 per month. Unable to cover the difference in rent, plaintiff alleges she is facing eviction, rent arrears, and the prospect of homelessness.

Plaintiff seeks a judgment declaring that defendants have violated her rights under state and federal laws by failing to promulgate adequate shelter allowance schedules and for upholding a system whereby public assistance families are maintained in "emergency housing accommodations." Plaintiff also seeks a temporary and permanent injunction enjoining [*2]defendants from: 1) failing to implement adequate shelter allowance schedules; 2) failing to provide plaintiff with sufficient assistance to obtain and retain a decent and adequate home in a racially and economically mixed neighborhood in Westchester County; and 3) maintaining "emergency housing accommodations." In addition, plaintiff seeks to have defendants pay her monthly arrears of $314 for the period January 1, 2001 through January 31, 2001 and for defendants to provide her with a shelter allowance of at least $700 per month effective as of February 1, 2001, directly to her landlord.

BACKGROUND:

In New York State, families with income below the Statewide "standard of need" and meeting other eligibility requirements may receive public assistance through two distinct programs: Family Assistance [Social Services Law §§ 343-360] and Safety Net Assistance [Social Services Law §§ 157-165]. Family Assistance ("FA"), a cooperative program of federal, state, and local governments, provides direct financial or in-kind aid to families with dependent children. It is the successor program to the Aid to Families with Dependent Children program ("ADC"). Safety Net Assistance ("SNA"), funded by the State and municipalities, is the successor to the "home relief" program. The original home relief program was not enacted for families with dependent children, although children who did not live with a relative were eligible.

Each local social services district in the State, including the Westchester County Department of Social Services ("WCDSS"), is required to provide a monthly shelter allowance to each public assistance recipient with a shelter expense to help the recipient with housing costs. The amount of the shelter allowance is set forth in a Shelter Allowance Schedule for the district where the recipient lives.

In 1990, the Court of Appeals decided Jiggetts v Grinker [75 NY2d 411]. In Jiggetts, recipients of ADC challenged the adequacy of the shelter allowances established for New York City. The Court ruled that SSL § 350(1), which provides for "adequate" shelter allowances "to enable the father, mother, or other relative to bring up the child properly," was mandatory rather than discretionary and that defendants' failure to promulgate adequate allowances presented a justiciable controversy.

In her complaint, plaintiff Hedgepeth, a recipient of FA, challenges the adequacy of the Shelter Allowance Schedule that OTDA established for Westchester County in 1988. Other public assistance recipients residing in Westchester County have filed similar complaints challenging the adequacy of the 1988 Schedule as it applies to each of them. (These actions will be referred to as the "Hedgepeth Cases.")

The Hedgepeth Cases were assigned to Justice John DiBlasi. On May 31, 2001, Justice DiBlasi found that plaintiff Hedgepeth and 17 other plaintiffs had sufficiently demonstrated a [*3]likelihood of success on the merits of their claim that the 1988 Schedule was not reasonably related to the cost of housing in Westchester County. Pending a final determination, Justice DiBlasi preliminarily enjoined OTDA to direct WCDSS to pay the difference between the actual rent for the plaintiffs in each Hedgepeth Case and the respective shelter allowance authorized under the 1988 Schedule. Justice DiBlasi also ordered OTDA to direct the payment of any rent arrears owed by the Hedgepeth Plaintiffs.

Between June, 2001, and November, 2003, Justice DiBlasi granted applications for preliminary relief in approximately 350 additional Hedgepeth Cases. This relief ("Hedgepeth Relief") ordered OTDA to direct WCDSS to pay the difference between the actual rent of each Hedgepeth Plaintiff and the respective shelter allowance authorized under the 1988 Schedule for as long as the plaintiff remained in the apartment identified in the complaint. The relief also frequently included payment of any rent arrears or security deposits. Furthermore, the relief was to remain in effect for as long as the plaintiff continued to receive "public assistance." The court did not distinguish between recipients of FA and SNA.

OTDA appealed two of these decisions involving SNA recipients on the ground that the court was empowered to grant injunctive relief only for as long as a plaintiff received FA. In March, 2003, the Appellate Division agreed with defendants, holding that SNA recipients cannot challenge the adequacy of the housing allowance schedules or the housing allowance they received since they did not receive such benefits under SSL § 350, the statute at issue in Jiggetts [McVay v Wing, 303 AD2d 727 (2d Dept. 2003, app. dism'd, 100 NY2d 577 (2003); Shubrick v Wing, 303 AD2d 744 (2d Dept. 2003), app. dism'd, 100 AD2d 744 (2003)]. These decisions held, as a matter of law, that all Hedgepeth Relief terminated when and if a Hedgepeth Plaintiff ceased receiving FA.

In July, 2003, OTDA promulgated shelter allowance regulations and shelter allowance schedules, effective November 1, 2003, that superceded the 1988 Schedule and related regulations challenged by the Hedgepeth Plaintiffs [18 NYCRR § 352.3]. In addition, the regulations made the following special provision:

Recipients in receipt of a court ordered shelter supplement, ... at the time this paragraph is adopted and, who are otherwise eligible for public assistance will continue to receive that supplement, if higher than the shelter allowance set forth in paragraph (1) of this subdivision, for up to a two year period, provided there is no break in assistance of more than one calendar month or that the family has not been sanctioned. [18 NYCRR § 352.3(a)(2)]

In other words, plaintiffs who received Hedgepeth Relief prior to and through November 1, 2003, would continue to receive those higher shelter allowance amounts for two additional years after November 1, 2003, as long as there was no break in their receipt of public assistance for more than one calendar month and they were not sanctioned for failure to comply with public assistance program requirements.

[*4]APPLICATIONS AND PARTIES:

The named plaintiffs in the two captions are two of hundreds of shelter allowance recipients who have filed lawsuits against defendants. Though they are not representatives of a class in a class action lawsuit, their two complaints (and in the case of plaintiff Gioia, the proposed amended complaint) are representative of the claims lodged by all the plaintiffs.

The "class" of plaintiffs is fluid. Over the course of time, several plaintiffs have discontinued their actions. The reasons vary, and may include instances where the particular plaintiff has received public assistance. Therefore, it is virtually impossible to refer to an exact number of plaintiffs and necessary to describe the existing plaintiffs in generalities.

With the promulgation of the 2003 regulations and schedule, it became obvious that defendants would move to dismiss many of the complaints and that plaintiffs not only would oppose the dismissal but also seek leave to amend their complaints. During the last months of 2003, counsel attempted to draft a stipulation that would reduce the exchange of papers and other administrative burdens necessitated by this motion practice. No stipulation ever was signed. The court, however, will treat plaintiff Hedgepeth's complaint and plaintiff Gioia's proposed amended complaint as representative of all similarly situated plaintiffs, i.e., the Hedgepeth Plaintiffs.

The court now has two applications before it. The first, by defendants, is to dismiss the complaint of plaintiff Hedgepeth and all other Hedgepeth Plaintiffs for failure to state a cause of action [CPLR 3211(a)(7)]. In support, defendants advance three arguments. First, because the claims of all Hedgepeth Plaintiffs are based on the inadequacy of the 1988 Shelter Allowance Schedule, the adoption of the superceding 2003 schedule renders their claims moot. Second, because the Hedgepeth Plaintiffs do not receive benefits under the 2003 schedule, they lack standing to challenge its inadequacy. Third, those Hedgepeth Plaintiffs who received SNA when they filed their complaints (or subsequently were transferred to the SNA program) cannot challenge the adequacy of the allowance under the Second Department holdings in McVay, supra, and Shubrick, supra.

In the second application, Melody Gioia, one of the Hedgepeth Plaintiffs, seeks leave to amend her complaint to challenge the 2003 schedule. Plaintiff Gioia seeks to amend on behalf of herself and all Hedgepeth Plaintiffs whose complaints have not been answered by defendants. As to the remaining Hedgepeth Plaintiffs, whose complaints have been answered, counsel state an intention to bring additional motions.

MOTION FOR LEAVE TO AMEND:

The court first turns to the motion for leave to amend the complaints. The proposed amendment alters the original complaints filed by the Hedgepeth plaintiffs by alleging that the new shelter allowance schedules promulgated in July, 2003, also are inadequate. [*5]

It appears from the papers that there are approximately 370 Hedgepeth plaintiffs with pending actions. It also appears, though it is not explicitly stated, that defendants have served answers to some of these approximately 370 complaints, but have not served answers to others. Plaintiff Gioia, the actual plaintiff moving for leave to amend, appears to fall into the latter category.

Under CPLR 3025(a), a party may amend his or her pleading as of right within three specified time frames. Two of these periods "within twenty days after" service of the original pleading and "at any time before the period for responding to it expires" are not relevant here. The third time frame "within twenty days after service of a pleading responding to it" is relevant in all those cases where defendants have not served an answer to the complaint. In those cases, the time for amending as of right has not expired, and no motion for leave to amend is necessary.

Accordingly, as to those unspecified number of Hedgepeth plaintiffs who have not been served with an answer to their complaints, the court does not grant leave to amend because no such relief is necessary. These plaintiffs theoretically retain the right to amend without leave of court until twenty days after receipt of an answer.

As to those unspecified number of Hedgepeth Plaintiffs who have been served with answers to their complaints, leave to amend is granted. Absent prejudice, leave to amend shall be freely given [CPLR 3025(b)], and, as will be seen in the disposition of defendants' motion to dismiss, the inclusion of allegations related to the 2003 shelter allowance schedule does not prejudice defendants.

However, allowing the amendments neither abates the motion to dismiss nor prevents the court from considering the arguments lodged in the motion to dismiss in light of the new pleadings.

Since 3211(e) requires the court on a 3211(a)(7) motion to consider not merely whether the plaintiff has properly pleaded the cause of action but whether plaintiff in fact has a cause of action, an amendment of the objectionable pleading while a motion is being brought on under 3211(a)(7) should not, under the CPLR, be deemed to abate the motion. If the pleader has no cause of action, no quantity of amendments is going to give him one, for which reason the 3211(a)(7) motion does not necessarily lose its vigor because of the amendment. And whether or not it does so is also a matter likely to engender disagreement among the parties, which only the court can resolve. [7B McKinney's Consolidated Laws of New York Annotated, C3211:65]

Accordingly, the court will deem the complaints of all Hedgepeth Plaintiffs to be amended as in the Gioia complaint and will determine the motion to dismiss as it applies to the amended complaint.

[*6]THE MOTION TO DISMISS:

As stated above, defendant's first argument for dismissal is that the promulgation of the 2003 schedule renders plaintiffs' claims moot because those claims are based on the 1988 schedule. Defendants' second argument is that plaintiffs, who receive benefits under the 1988 schedule, lack standing to challenge the adequacy of the 2003 schedule. Neither of these arguments is negated by this court's granting plaintiffs' leave to amend their complaints.

First, all Hedgepeth Plaintiffs who either did not receive FA at the time they filed their complaint or no longer receive FA now may not challenge the adequacy of the housing allowance schedule or the amount of the housing allowance he or she actually receives [McVay, supra]. There is a dispute in the papers over who among the 370 or so Hedgepeth Plaintiffs fall into this category and which side has the information to make that determination. The court will not enter into this dispute other than to direct that counsel submit stipulated orders of dismissal for each such Hedgepeth Plaintiff within 30 days after service of a copy of this order with notice of entry.

As to the remaining Hedgepeth Plaintiffs, issues of mootness and standing, along with the failure to state a cause of action, mandate dismissal.

It is well settled that declaratory relief is limited to determining actual controversies between litigants [Matter of Hearst v Clyne, 50 NY2d 707 (1980)]. Where there is no justiciable controversy upon which a declaratory judgment can be made, the action must be dismissed as moot [Mastrangelo v County of Nassau, 102 AD2d 814 (2d Dept. 1984)]. Courts will not entertain a declaratory judgment action when any decree that the court might issue will become effective only upon the occurrence of a future event that may or may not come to pass [New York Public Interest Research Group, Inc., v Carey, 42 NY2d 527, 531 (1977)].

The promulgation of the 2003 shelter allowance regulations and schedule brought with it a grandfather clause that extended court-ordered Hedgepeth Relief (i.e., the full payments of the difference between the scheduled shelter allowance and plaintiff's actual rent) for a period of two years from the effective date of the regulations. Therefore, the remaining Hedgepeth Plaintiffs will receive relief that exceeds the confines of the 1988 and the 2003 schedules for a period lasting two years and extending approximately 15 months from the date of this decision. It is clear that no Hedgepeth Plaintiff is in danger of losing his or her home or becoming homeless due to the alleged inadequacy of the shelter allowance schedules until November, 2005.

The mere fact that there may be a controversy between the parties some time in the future is insufficient to compel a court to render a declaration at this time. In order for an administrative action to be ripe for declaratory review, the anticipated harm caused by the administrative action must be direct and immediate [Weingarten v Town of Lewisboro, 77 NY2d 926 (1991)]. No plaintiff receiving Hedgepeth relief can assert that he or she is immediately threatened with homelessness as a result of the 2003 schedule. [*7]

In addition, this lack of any immediate threat of injury means that plaintiffs have failed to meet the first prong of the test for standing, a demonstrated "injury in fact." [see Society of the Plastics Industry v County of Suffolk, 77 NY2d 761 (1991)].

Accordingly, the motion to dismiss is granted, and the complaints of all remaining Hedgepeth Plaintiffs (those not dismissed because the particular plaintiff either was not or is not a recipient of FA) are dismissed.

Counsel are directed to submit stipulated orders of dismissal for each such Hedgepeth Plaintiff within 30 days after service of a copy of this order with notice of entry.

Counsel are reminded that pursuant to CPLR § 3001 all orders of dismissal must include the appropriate negative declaration.

This constitutes the decision and order of the court.

E N T E R :

___________________________

HON. W. DENIS DONOVAN

Justice Supreme Court

Dated: August , 2004

White Plains, New York

To:LEGAL SERVICES OF THE HUDSON VALLEY

30 South Broadway

Yonkers, New York 10701

Attorneys for Plaintiffs

CLEARY, GOTTLIEB, STEEN & HAMILTON

One Liberty Plaza

New York, New York 10006

Attorneys for Plaintiffs

ELIOT SPITZER

Attorney General of the State of New York [*8]

120 Broadway 24th Floor

New York, New York 10271

Attorney for Defendants