The Lucerne Case Will Set A Precedent, Lawyers Say; But What Will The Precedent Be?

The Lucerne.

By Carol Tannenhauser

The fate of about 200 men experiencing homelessness who are currently being sheltered by the city at The Lucerne hotel on West 79th Street and Amsterdam Avenue, will soon be determined by a panel of five judges from the New York State Appellate Division.

“The decision should come in the next few weeks,” said Randy Mastro, the attorney fighting to allow the city to move the men to another hotel in the financial district. Michael Hiller, representing those who would have them stay, said, “This will be a precedent-setting case for New York City.”

But what will the precedent be? WSR talked to both attorneys by phone about their positions and the implications of the forthcoming decision.

“I think it would be a devastating precedent if homeless individuals could go to court to force the city to temporarily house them in the venue of their choice,” said Mastro (pictured at right). “The city needs the flexibility to be able to make these moves, even more so in a pandemic.”

”I argue against the dangerous precedent that would be set if we were to lose,” Hiller said, “namely, that a group of wealthy neighbors can hire a politically connected lawyer and forcibly evict homeless residents from their community.”

Mastro is politically connected. He was a deputy mayor under Giuliani. He freely admits that, on behalf of his clients, he wrote a letter to Mayor de Blasio and other city officials in late August, urging the mayor to do something about conditions relating to homelessness on the Upper West Side, which were unacceptable, he said, particularly around The Lucerne.

“Unbeknownst to me, the mayor himself went to visit the neighborhood, went to The Lucerne,” Mastro recalled, “and saw with his own eyes the conditions there, and announced at a press conference the following week that they were ‘not acceptable,’ and he was going to move the men.”

Hiller (right) argues that it was an “irrational, arbitrary, and capricious” decision, which violates his clients’ 5th and 14th Amendments rights, involving due process. “People think due process means you have a right to a trial,” he said. “Due process also means you have a right to be free of irrational, capricious, and arbitrary decision making.”

“Ridiculous,” Mastro responded. “This isn’t a matter of constitutional rights. This is a question of the City having the legal authority and discretion, during a pandemic, to determine where it is most appropriate to house the homeless. The city has the right by state law, city law, and by executive order to do so.”

“We aren’t saying that homeless residents get to pick where they live,” Hiller said. “We are saying that when the mayor is using emergency powers, as he is during the pandemic, he must do so in way that is rational. Our position is the decision here was made for purely political reasons.”

“He went to the Lucerne and the neighborhood, saw what was going with his own eyes, and made a decision,” Mastro repeated. “What could be more rational than that?”

There are good reasons justifying both sides of the argument. On the side of moving the men, according to Mastro, the downtown hotel is a “more appropriate and safer facility,” where each man would have his own room, as opposed to being doubled up in The Lucerne, and where there is more space for recreation and socializing. The men’s health, addiction, and psychiatric services are also only 10 blocks away, whereas they are over 100 blocks from The Lucerne.

On the side of keeping the men at The Lucerne: there’s been a turnaround after a rough start, due largely to the efforts of community groups, local nonprofits, elected officials, and individuals, who have reached out and supported these new neighbors, with kindness, services, and, even, jobs. Though the transitional month was rocky, the men now appear to be integrated into the neighborhood — with the occasional, publicized upset. Moving them would cause “irreparable harm,” Hiller said.

“We should be using The Lucerne as a model for the city,” he added. “I’m not talking about how it started out. I’m talking about how it has become a public/private partnership. It shows what we can do if we work together.”

On that note, since October, when Hiller filed his lawsuit, 54 residents of The Lucerne have transitioned to permanent housing, he said. That is, after all, the point.

“I genuinely believe that the city is expediting the transition process to moot the lawsuit,” Hiller said. “Two out of three of my clients were transitioned into permanent housing. If that’s what motivates the city to end homelessness, I’ll sue the city every day.”

Hiller also said that if the court rules in the city’s favor, his side won’t appeal. It would make no sense, he explained, as the men would have already been moved, and The Lucerne will have been closed.

“This is it,” he said.

NEWS, REAL ESTATE | 50 comments | permalink
    1. Frank Grimes says:

      The last I heard, NYC has received NO funds from FEMA as reimbursement. The platform this whole time was “The Federal government is paying for most of this”. Given the cost associated with these deals NYC negotiated with the hotels, This is an absolutely crushing blow to the budget for years to come The lasting collateral damage of UWS taxpayers moving out (there are many) as a result of this only amplifies the financial devastation this has caused. One day this will do a Harvard case study about this in Civics class. What an absolute travesty this has turned out to be.

    2. Irate Partisan says:

      Perfect! I feel like they’re arguing right in front of me. Sheesh—lawyers. As they say back home in Indiana: can’t live with ‘em, can’t live without ‘em.

    3. Otis says:

      It seems that whenever I walk by The Lucerne there are ambulances and police cars in front.

      I can’t help but wonder how much the behavior of the residents at this hotel is costing taxpayers.

      • World Peacenik says:

        Criticizig the residents for the cost of their ambulances is a new one.

        “UWS Values” on display.

        • Alex says:

          Yes, UWS values took in hundreds of homeless people and gave them shelter and safety during the height of covid, as people were dying all over the city. The residents in the UWS have absolute right to speak up, and in no way does it mean there’s no sympathy for homelessness, despite your portrayals. By the way, I’m not even close to being rich.

          • World Peacenik says:

            If this were true, there wouldn’t be the outcry to get them out of here.

            UWS didn’t “take them in”. Stop the revisionism.

            • Ian Alterman says:

              Your math doesn’t add up. UWSSS/WestCo has ~15,000 followers. The UWS has 220,000 people. So even if some additional percentage supports UWSSS/WestCo, at least as many, if not more, support having taken them in. Which we did.

            • World Peacenik says:

              Ian, I agree. My reply had to do with finding out that neighbors find it too much of a financial drain to have ambulances respond.

              I, of course, understand that most neighbors are not like that.

              But it is disheartening to find that some are.

        • UWSmom says:

          It’s a fair criticism when there are more effective and efficient ways of providing these services … like on sight medical care/treatment. If this was so successful frequent emergency care would not be necessary. Your lack of concern regarding the frequency of emergency care seems rather heartless.

    4. Leon says:

      Why don’t we put homeless people who are supposed to be living in more crowded communal living spaces near the top of the vaccine priority list (similar to nursing homes and jails), get them their vaccines, then they can go back to a more cost effective living situation? Problem solved.

      They really lose me on the “irreparable harm” argument. If I lost my job and had to move it would make my family’s lives a lot worse but no one would be having bake sales for me.

      • Trevor says:

        You are dead on. The attorney Hiller and his supporters have a warped sense of fairness. The men who are being housed at the Lucerne are wards of the state. They do not have a right to select the geographic location of their residence while the rest of the community does not.

    5. Peter says:

      A penny for Hiller’s thoughts on the minimum of twice daily visits by multiple emergency vehicles. Not a day skipped over the past month.

      Another penny for his thoughts on the most expensive forms of (health) care in America.

      Is this the “rational” vision for “model public/private partnership?

    6. Kim says:

      This decision won’t set a precedent because whoever loses is going to appeal this to the Court of Appeals which is the highest State Court in NYS.

    7. Ian Alterman says:

      Mastro is lying. The mayor NEVER went to the Lucerne. He did go into the neighborhood, and pronounced the conditions “not acceptable.” But he never said what those conditions were, and would not have been able to tell whether the responsibility for those conditions lay with residents of the Lucerne or street homeless.

      As for whether the case will set a precedent, it already has. Consider that the first case filed AGAINST the move by residents of the Fi-Di area failed. Then Mastro’s own clients were refused “standing” to sue. And every time “his side” (via the City, not themselves) thought they had a win, a further stay was granted.

      Given that Mastro made his first threat on 8/27/20 and his clients expected the men gone by early September, and the men are still there four months later, I would say that even if the men are moved in January or February, their continued success in the courts has already set a precedent.

      • Roma says:

        This case should serve not only as precedent but as an alarming wake up call to anyone expecting to live in safety and security in NYC. Yes, housing is a right here, and importantly, though the uninformed seeking to leverage this for profile throw that slogan out regularly, neither side seeks to dispute that. These men will have housing in either outcome, and each side wants that, but only one side is arguing for better housing for the men. Does it also serve their community to relocate the men? Yes, because the current situation is untenable. The fact that it’s better than August is attributable to the community uproar, but anyone local is more than aware of the nightly ambulances and recent deaths there. There has been disturbing dishonesty and obfuscation of facts by local elected officials. Men there, other than the most vocal who have (re)gained fame through this, are distraught over the conditions and lack of support there. It’s lovely that individuals have reached out, but no cookies or loving chalk message can cure serious mental illness combined with drug dependence, and it’s deeply unfair to these men for us to be so caught up in our own good deeds to ignore that reality. Please direct your support to the thousands of others suffering with homelessness in our city. Why the exclusive focus on the Lucerne? Because it offers a public platform for self-obsessed virtue signaling, particularly to those seeking office or future positions who lacked such association previously. Yes, it is unprecedented that those experiencing homelessness choose where to live. Are we so afraid to sound unwoke that we cannot acknowledge that is illogical and not workable in a society? They will have housing, in this case better housing, but a city must retain discretion to allocate housing it supports. People risked their own reputations to stand up for what makes sense when that is not popular here today. Look at the record. Why did people like Helen lie and say the men were placed here to save them from COVID, when we know they came from another hotel in midtown where the community also reacted to the rising crime and problems? How is it not detrimental to a struggling city to spend EMS and NYPD resources nightly and to the men there for a situation that could have easily been avoided? We should all deeply fear where we have allowed our city to land, especially now, if we choose ideology that flatters our egos over function.

        • Ian Alterman says:

          You are wrong on every count.

          “The fact that it’s better than August is attributable to the community uproar…”

          Nope. The reason it is better is because (i) the residents fought for and won additional on-site services, (ii) Open Hearts has provided additional services both on-site and off, and (iii) Goddard riverside provided 50 paying jobs for the men. Because of all this, the program now works better than any other in the City.

          “…but anyone local is more than aware of the nightly ambulances and recent deaths there.:

          You lie – and I am just as local if not more so than you, and I am at the Lucerne an average of three times per week. It is hardly daily, barely even weekly. And there have been exactly four deaths, one of whom was a staff member, not a resident. So stop with the B.S.

          “Men there, other than the most vocal who have (re)gained fame through this, are distraught over the conditions and lack of support there.”

          You lie again. And how would you know? Have you personally spoken with any of the men, or are you regurgitating right-wing talking points? I work with the men two or three times per week. I know many of them. I have not heard a single one complain about the conditions or lack of support. In fact, as above, that support has only grown, and the men are quite satisfied, and the vast majority want to remain.

          “It’s lovely that individuals have reached out, but no cookies or loving chalk message can cure serious mental illness combined with drug dependence, and it’s deeply unfair to these men for us to be so caught up in our own good deeds to ignore that reality.”

          It is not just cookies and chalk, and the the reality is far different than you paint. OHI provides several programs on-site, including writing workshops, spiritual service and a 12-step program. You are repeating talking points that have not been true for months.

          “Why did people like Helen lie and say the men were placed here to save them from COVID, when we know they came from another hotel in midtown where the community also reacted to the rising crime and problems?”

          You are conflating two separate issues. The moving of the men from congregate shelters to empty hotels WAS done in order to de-densify the shelters and provide for a safer situation. That the men were moved from midtown to the UWS was done for the very reason that YOU post here: NIMBYism and racism. They were hounded from midtown by NIMBYs/racists, and have ended up on the UWS where the (thankfully) comparatively few NIBYs/racists have come out and fought like hell to get rid of them again. You and your compatriots can couch your NIMBY/racism in claims of “compassion” and “concern,” but the latter ring completely phony. You never gave a damn about these men.

          • Newcavendish says:

            “Nimbyism and racism” is the lefty equivalent of “Communist plot” in the ’50’s … it is an all-purpose solvent to try to discredit the opposition. Let’s address the issues rather than slinging slogans.

            • Leon says:

              Exactly. Particularly the word “Racist.” The opposition to this has nothing to do with the race of the residents. Particularly because I think there are residents of all races. And how do those who use this term so casually (such as Mr. Alterman) know the race of the person posting here.

              As I have said ad nauseum, there is way too much racism in the world, so stop trivializing the legitimate cases by labelling everything negative that happens to a Black person with that term.

            • HelloUWS says:

              I agree with Leon, yesterday we were walking in the neighborhood and there was a man behind us walking, shouting and not wearing a mask, so we turned to look at him and then stopped to let him pass by. He then passed us and shouted obscenity at us and called us racists. I was with my young daughter who heard this and spoke with me for a long time about it.

              We should be careful as to not trivialize this important thing for the sake of everyone.

            • Apron Annie says:

              @NewCavendish — Ian did discuss the issues. He went through every single one of them, point by point. You totally ignored all of it, and instead zeroed in on the NIMBY accusation. Why?

              These “how dare you call us racist” comments that accompany every article about the Lucerne are kind of funny to read. They seem to ooze with latent self-awareness. There’s always a “the lady doth protest too much” quality to these comments.

              I’d venture to say that people who are secure in the knowledge that they are not motivated by racism, usually don’t have such strong emotional reactions to accusations of racism.

              If your comments are more about refuting accusations of racism than actually discussing the issues surrounding the Lucerne, that’s a red flag IMO. It suggests that deep down, you are afraid that you might, in fact, be racist.

      • js says:

        Respectfully – regardless of if one believes the individuals should remain at the Lucerne or not, it seems to me this raises several issues and questions. For example:
        The City’s need for the right to determine where and how to deliver services – to anyone.
        Why there has been concern about individuals at the Lucerne, but not at other shelters nor for homeless families in horrible shelters? Not clear why this has been the singular focus of attention and monetary resources when so many others are suffering?
        I honestly would appreciate your thoughts.

      • UWS is not yet communist says:

        The Lucerne isnprivately owned. Doesn’t the owner have rights when the city contract ends? In your view, is he allowed to go back to operating his hotel (or emptying it or razing it or whatever he wants)? Or is he stuck with having these residents in perpetuity because you demand it of him?

    8. Big Earl says:

      …the men now appear to be integrated into the neighborhood

      “Intergrated”. That’s one way of looking at all the random spare changers at every major street corner, sleeping bags on sidewalks and possessions stacked eight feet high under scaffolding. Along with the drunks drinking and passed out on random stoops with the smell of weed wafting in the air. Reminds me of my days of touring with the Grateful Dead and the parking lot outside a Dead show.

      …with the occasional, publicized upset. Moving them would cause “irreparable harm,” Hiller said.

      “Irreparable harm”. Asking a homeless person who lives on the street to move out of one hotel and into another with a roof over their head will cause “irreparable harm”. Please! Now I’ve heard it all. Bye-Bye!

      • Ian Alterman says:

        You are conflating the street homeless with the residents of the hotel, which is exactly how we got here in the first place. The residents are not permitted to panhandle (and don’t), and why would they need sleeping bags when they have hotel room? Are you even listening to yourself?

        “Asking a homeless person who lives on the street to move out of one hotel and into another with a roof over their head will cause “irreparable harm””

        You obviously know nothing. Not every person in a shelter came from the street. In fact, most did not. So once again, you are speaking from complete and utter ignorance.

        The irreparable harm is done by the instability and trauma of continued moves (if they are moved to the Radisson, it will be their fourth such move). How would YOU like to be uprooted every month or few weeks? I’m sure you would be traumatized, too. You obviously weren’t born with a compassion gene.

        • HelloUWS says:

          Ian, how you think that it is ok for you to call people all sorts of names or attack their integrity like stating here that “you were not born with a compassionate gene” is astounding and hypocritical.

          It is also amazing that WSR allows so many very long posts by Ian for now months whenever the Lucerne issue pops up regardless of false claims and attacks on character for anyone who says anything about the Lucerne, homelessness and the quality of life, from being racist, not caring, “white”, privileged, don’t give a damn, liars… it goes on and on. Unfortunately this is what we see today when a person like Ian can get so much of a voice in public forums drowning everyone else’s and then patting themselves on the back.

    9. UpperWester says:

      the City provides housing assistance to a lot of people who find their own housing and CHOOSE where they want to live. As I see it, the men at the Lucerne Hotel are like many others in the City receiving housing assistance, they can choose any housing that accepts the amount the City give then or they can choose housing at a larger rent if they can make up the difference

      • Ian Alterman says:

        Yes, that is how it works. But the men must first have their “housing package” put together by a case worker, and then it needs to be approved. After that, one of the housing providers (such as Urban Pathways) has to find an apartment, then the client goes to see it. Finally, the client is provided keys. This process can take weeks to months. And if they the clients try to find their own housing, it can take longer, since some landlord do not accept the vouchers, etc. But already over 30 men have been moved into permanent housing from the Lucerne. So why not let the rest remain there as they go through this process, instead of uprooting them again, and causing further instability?

    10. John says:

      Too many people agin don’t care about nyc as a whole and just care about their own couple of blocks. None of the people here complaining about these men are suggesting any good ideas and only trying to push this problem to another area in Manhattan. Every neighborhood has children, schools and business that will be affect by them.

      Break up the 200 and place 10-20 in each neighborhood and borough rather than one location. Why is this not a option?

      • Ian Alterman says:

        The reason it is not an option is manifold. First, there are not enough facilities to place only 10 or 20 men in each. There are a limited number of hotels that can be used and there are a limited number of rooms available in existing non-congregate shelters. Second, the purpose of placing them in hotels was to create greater social distance so the virus would not spread so fast. Placing them in other than a hotel or a shelter where there is ample room would defeat the entire purpose. Third, as so many have pointed out, many of the men at the Lucerne have either substance use issues or mental illness or both. And despite what some continue to regurgitate, the men ARE getting both ON-SITE and off-site services in these regards. So to make your plan work, they would need to be placed either in a facility that already has those services, or was a reasonable distance from providers of those services.

        Still, your idea would be a good one if it were feasible.

      • charles cohen says:

        Is this called sharing the wealth?

        Personally I think they should be housed in neighborhoods which voted for DeBlasio and others from the left. If it gets too much for me as a long time Upper West sider I avoid certain streets or I will vote with me feet,

    11. David Kleinberg-Levin says:

      Hiller’s argument, that, in his words, “forcibly evict homeless residents from their community” is nothing but an absurd argument based on a false premise. These men were placed in the Lucerne by the City; they did not choose to be moved there. And in what rational sense can they be called “residents” of this community? What, pray tell, do they contribute to this community? They claim that residing here is so important to them. But as far as I can see, they contribute nothing but unnecessary problems for the true residents. These men have no long-term investment in this neighborhood.

    12. TiredUWS says:

      I don’t feel safe outside at any time of day or night. I stay at home in my first level apartment that overlooks a small alley and don’t see sunshine for days. I hope they have a swift departure.

      • G.Locke says:

        It did not become that UnSafe.
        I used to walk on the Upper East Side early mornings or fairly late in the evenings.
        I did not feel unsafe although obviously you need to be alert during those hours.
        Same walks on the Upper West Side these days.
        So far so good …

    13. ZoomZ says:

      I’ve said this about a dozen times already, right here in the WSR.
      These folks are not going anywhere.
      July became August & August becomes January.
      Get used to it.
      They are here to stay.
      For good or for bad.

    14. GG says:

      With all due respect to this Ian Alterman person, you are not having a private conversation with every commenter on this site.

      There is no need to reply to everyone. Make your point and move on with your life.

      • charles becker says:

        Ian has every right to determine the course of his life. Answering posts is one of his passions. His posts are informative even if you disagree with his facts or his conclusions.

    15. LongtimeNYer says:

      The article’s statement that the men of the Lucerne now “appear to be integrated into the neighborhood” is ridiculous.

      • MAD says:

        Agree. And why has the WSR become Ian Alterman’s platform? He certainly is allowed to publish responses of more than 100 words, including calling people liars. Why doesn’t his ministry include helping people sleeping under piles of filthy blankets get off the street?

        • HelloUWS says:

          Yes I agree with MAD. Unfortunately WSR has become Ian’s platform with very long posts that go on about how everyone else’s opinion is wrong except for those who agree with him or applaud him.

          He is apparently not subject to adhering to the community guidelines they say they delete.

    16. Paul says:

      This case was already decided by a judge who’s decision was for them to move. Now yet again it will be decided by another group of judges. And if their decision is for them to move can the other side appeal that decision & keep this going on even longer? Probably. What is the point for a whole court case where a judge makes their decision if it can just be appealed over & over again? I have sadly just accepted the fact that these people will be living there forever. If I had a quarter for every time there was a police car or ambulance out there since they moved in I’d be living on a private island by now.

    17. LYJ says:

      This is a farce. Homeless people who live on our tax payers account should dictate where they want to stay??? Part of our community? They were shoved into our throats this summer; and In the first place what ties could have been forged in such short period? In the meantime we all live in fear and our personal safety and security was sacrificed. The number of unprovoked attacks of innocents residents by mentally ill has increased exponentially compared with Bloomberg tenure.

    18. Newcavendish says:

      The precedent seems to be endless litigation, heedless of the costs, and failure to take cognizance of the legitimate concerns of the community (shooting up in public, noise pollution from people parading around with boom boxes, aggressive panhandling, smoking dope in public, etc.). While that needs balancing against housing concerns in a pandemic, it has been undermined by taking seriously men’s claims of emotional trauma if they have to leave quite cushy digs paid for by the taxpayers. A sorry mess.

      • Juan says:

        It is quite ironic that the Lucerne Lovers have taken a page out of Donald Trump’s playbook – engage in constant litigation, foot stomping and bending of facts (such as denying that there has been any troublesome behavior by the residents of the Lucerne) in order to prolong the stay of Trump/Lucerne residents in a place that they are supposed to be moving out of.

    19. Mary McCorry says:

      Randy Mastro has mischaracterized this proceeding by claiming that homeless people are trying to dictate to the City where they will reside. In fact, it was the Dept of Homeless Services that placed these men in the Lucerne pursuant to the Dept’s procedures. Then a group of UWS residents hired Randy Mastro to sue the City to move the men elsewhere. Apparently, these Upper West Siders and/or Mastro have undue influence with the Mayor who dictated the removal of the men, absent any process, soon after he received a call from Mastro. The pending proceeding, therefore, if successful, would simply reaffirm the long-standing principle that government may not act arbitrarily and capriciously. No new law would be made, no dangerous precedent set; instead, the continued viability of the rule of law will be affirmed.

      • Katina Zachmanoglou says:

        The most morally corrupt aspect of the NIMBY position is the claim that “their effort to move the men was motivated primarily by concern for their well-being.”
        It is despicable to disguise obvious discrimination behind such an assertion, and no different than claiming that people of color would be better served living only with other people of color in a worse neighborhood.

        The actions of Attorney Randy Mastro and others to interfere with housing for protected classes is a violation of Federal, State and Local Civil and Human Rights laws. These laws were passed specifically to stop just this type of discrimination and to protect people of color, those with mental and physical disabilities, and those recovering from alcoholism and substance abuse.

        Under Fair Housing Laws, NIMBYs cross the line from free speech into illegal action when they take steps to interfere with housing for protected classes and can be sued.

        • Da Homeless Hero says:

          You have a great point, but the real target is not what you call NIMBY as much as it is the Mayor who actually made the decision. He should have been more responsible and respectful to the rights of those of us who are homeless and here because of the pandemic. Despite the order from Mastro on behalf of his clients, the Mayor made a decision that was an abuse of power and that is what we are really fighting against. We already beat the Nimby’s in that they have been deemed to not have standing. That is a precedent. That goes for both neighborhoods. The difference with the Downtown group is that in their filing they are not challenging our right to be there, their argument is based on the City using its powers in an illegal way that bypasses the normal procedures. The Mayor has abused his power and our argument is against the Mayor who is the only that has made the decision to move us.

    20. Marti Cassidy says:

      Housing justice is a core UWS value.

    21. Da Homeless Hero says:

      Another foolish thing people say is that there is more recreational space at The Radisson. How much sense does that make when the suggestion from the CDC is that people not congregate in groups of more than 10. What will the so-called extra space do when we can’t congregate unless you want us to get and spread the virus in the FiDi district? Keep in mind, the Radisson is currently occupied by another shelter provider with residents there. Why not see what services they are getting. The truth is that they are getting any, while we have a full range of services here at the Lucerne. Why would we want to go there and not get any services? Stop lying to the people and stand on truth, Mr. Mastro. de Blasio never stepped foot in the Lucerne. He never met with anyone here. The Lucerne is not an SRO hotel. It’s a luxury hotel. The Radisson is not a shelter facility with medical clinics. It’s a hotel just like the Lucerne, except a little less plush.