| Delgado v New York City Hous. Auth. |
| 2009 NY Slip Op 07763 [66 AD3d 607] |
| October 29, 2009 |
| Appellate Division, First Department |
| Julissa Delgado et al., Appellants, v New York CityHousing Authority, Respondent. |
—[*1] Sonya M. Kaloyanides, New York (Steven J. Rappaport of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Patricia Williams, J.), entered September 29,2008, inter alia, denying declaratory and injunctive relief and dismissing a CPLR article 78proceeding, unanimously modified, on the law, to declare that petitioners lack standing to bringthis proceeding for enforcement of Housing Maintenance Code (Administrative Code of City ofNY) § 27-2013 (a) (2) and (b) (2), and otherwise affirmed, without costs.
Petitioners, residents of public housing apartments owned and operated by respondent NewYork City Housing Authority (NYCHA) and a labor union representing apartment painters andpainting supervisors employed by NYCHA, seek a judgment (1) enjoining NYCHA fromcarrying out a plan restructuring its procedures for painting tenant apartments that eliminatesmost of its paint supervisor positions, reassigns paint supervisors to painter positions, and shiftsresponsibility for the supervision of contracted paint jobs from painting supervisors to housingdevelopment managers responsible for oversight of other contractors, and (2) grantingdeclaratory relief and compelling NYCHA's compliance with the Housing Maintenance Coderequirements that it repaint tenants' apartments every three years—which NYCHAconcedes it has failed to do—and repaint or recover surfaces in the public areas of housingprojects when required to keep them sanitary (Administrative Code § 27-2013 [a] [2]; [b][2]). Only the Commissioner of the New York City Department of Housing Preservation andDevelopment is authorized to seek such relief or other sanctions and remedies for violations ofthe Housing Maintenance Code (NY City Charter § 1802 [1]; Administrative Code§§ 27-2120, 27-2121, 27-2122). Therefore, petitioners do not have a private right ofaction for the injunctive and declaratory relief sought. Nor may petitioners enforce the HousingMaintenance Code through 42 USC § 1983. Compliance with a housing code is not anunambiguously confirmed right secured by the force of federal law (see generally GonzagaUniv. v Doe, 536 US 273, 283, 290 [2002]) or the United States Constitution (seeLindsey v Normet, 405 US 56, 74 [1972]), and United States Housing Act of 1937 (42 USC)§ 1437d (l) (3), which obligates public housing authorities to maintain projects "in adecent, safe, and sanitary condition," "does not create a right enforceable under § 1983 toproper maintenance of the housing project" (Concerned Tenants Assn. of Father Panik Vil. vPierce, 685 F Supp 316, 322 [D Conn 1988]; see also Thompson v Binghamton Hous.Auth., 546 F Supp 1158, 1183 [ND [*2]NY 1982]).
There is also no merit to petitioners' claim that NYCHA violated the prohibition in CivilService Law § 61 (2) against assigning civil servants to out-of-title work by assigninghousing development management to supervise painting contractor work that had previouslybeen supervised by NYCHA's painting supervisors. Such supervisory work clearly falls withinthe official statement of duties attending the positions of housing managers and buildingsuperintendents (see Scarsdale Assn. ofEduc. Secretaries v Board of Educ. of Scarsdale Union Free School Dist., 53 AD3d 572[2008], lv denied 11 NY3d 710 [2008]). NYCHA's method of calculating employeeseniority based on the date the employee actually reported for work on a permanent basis, andnot, as petitioners urge, on the date the employee was given notice of having been hired, is arational reading of Civil Service Law § 80 (1) and (2). NYCHA demonstrates that therestructuring plan was motivated by economic and administrative concerns and was nototherwise arbitrary and capricious (see Matter of Saur v Director of Creedmoor PsychiatricCtr., 41 NY2d 1023 [1977]). We have considered petitioners' other arguments and find themto be without merit. We modify solely to declare in NYCHA's favor (Lanza v Wagner,11 NY2d 317, 334 [1962], cert denied 371 US 901 [1962]). Concur—Sweeny,J.P., Buckley, DeGrasse, Freedman and Abdus-Salaam, JJ.