A Shelter From Litigation: How Mediation Helped Preserve the Core of New York City’s Right to Shelter

By Jared Joseph Jackson

I.               Overview

In 1979, a class action lawsuit was brought against New York City by a coalition of homeless individuals.[1] After almost two years of negotiations, the parties of this suit, called Callahan v. Carey, entered into a consent decree, which provided that the City and State of New York would “provide shelter and board to all homeless men who met the need standard for welfare or who were homeless ‘by reason of physical, mental, or social dysfunction.’”[2]

Over time, modifications expanded the right to women and lowered eligibility requirements, but there have been challenges over the years as well.[3]  Responding to a large influx of asylum seekers in 2024, NYC sought to temporarily modify the consent decree to relieve itself of certain obligations, which was opposed by the Legal Aid Society.[4]  The city argued that the right to shelter created in 1981 did not anticipate the need to respond to a humanitarian crisis and shelter over 120,000 people, 65,000 of which were migrants.[5]  After significant mediation, the parties reached a stipulation that modifies the city’s obligations.

The terms of the settlement reached include preserving the underlying right to shelter and guaranteeing shelter for new arrivals, but only for 30-days for single adults over 23, with those younger having 60 days guaranteed.[6]  There is no day-limit for families with children, and the settlement also requires appropriate numbers of staff as well as standards for food and bathrooms, and eliminating the use of “waiting rooms” as shelter.[7]

II.             The Mediation Process

The New York State Unified Court System describes mediation as a process where impartial mediators help the parties in a dispute understand one another and reach agreements that satisfy everyone’s needs.[8]  This often allows for improved communication, saves time and money, addresses non-legal issues that may be just as important to the parties as the legal issues involved, and importantly, can lead to longer-lasting agreements.[9]

The mediation present here was confidential and lasted for months.[10]  When the city sought to modify the long-standing decree, State Supreme Court Judge Gerald Lebovits ordered the mediation agreed to serve as the mediator himself.[11]  Lebovits stated that “there should not be a war of legal papers . . . for now, the solution is to try to settle the matter if possible . . . to that effect, we have agreed that the proper path forward is to discuss logistics and nuts and bolts confidentially.”[12]

Attorneys for the Legal Aid Society echoed the idea that mediation would be beneficial, stating that the goal was to avoid “legal skirmishing” and settle this dispute as opposed to undergoing a full challenge which would involve a re-examination of the provision in the New York State Constitution that the original consent decree is based on.[13]  The judge in this case had some exposure to alternative dispute resolution.  Lebovits formerly served at Housing Court, which gave him significant experience negotiating resolutions between parties without getting into protracted litigation, according to Legal Aid attorneys.[14]  However, when Judge Lebovits was originally assigned to this case, many housing advocates were wary due to some of the judge’s housing court decisions, one of which resulted in the eviction of a mentally ill man for living on the street near his apartment.[15]  This exemplifies the point that, while mediators are impartial, they may still bring their own biases to the bargaining table, and prudent advocates need to be aware of these circumstances when developing their strategies.

III.           Conclusion

The mediation allowed both the Legal Aid Society and the city to achieve some of their most important goals.  The Legal Aid Society was primarily focused on preserving the right to shelter outlined in the 1981 consent decree, and allowing it to continue to apply to longer-term New Yorkers and new arrivals alike.[16]  The city was focused on obtaining some level of modification to the existing decree to account for what they described as an unprecedented influx of individuals in need of shelter.  The city seemed to be satisfied that the agreement reached granted some flexibility in times of crisis.[17]  Ultimately, while far from perfect, this mediation illustrates some of the benefits of Alternative Dispute Resolution; an agreement was reached that satisfied both parties to some degree, as opposed to a ruling that could have been more zero-sum.

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[1] The Callahan Legacy: Callahan v. Carey and the Legal Right to Shelter, Coalition for the Homeless https://www.coalitionforthehomeless.org/our-programs/advocacy/legal-victories/the-callahan-legacy-callahan-v-carey-and-the-legal-right-to-shelter/ [https://perma.cc/6LG5-ZE3V] (last visited Feb. 22, 2025).

[2] Id.

[3] Elaine Ryan, The History of NYC’s Legal Right to Shelter, Untapped New York (Aug. 28, 2023), https://www.untappedcities.com/nyc-right-to-shelter/ [https://perma.cc/4XSX-8W4S].

[4] Mayor Adams Announces Agreement With The Legal Aid Society In Callahan ‘Right To Shelter’ Mediation, Granting City Additional Flexibility During Migrant Humanitarian Crisis, NYC (Mar. 15, 2024) https://www.nyc.gov/office-of-the-mayor/news/200-24/mayor-adams-agreement-the-legal-aid-society-callahan-right-shelter-#:~:text=Today's%20stipulation%20relieves%20New%20York,not%20impact%20families%20with%20children [https://perma.cc/E64T-ET6Y].

[5] Id.

[6] Legal Aid, Coalition for the Homeless announce settlement in Callahan v. Carey, preserving NYC’s Right to Shelter settlement protects the right to shelter for anyone in need. City agrees to eliminate backlog of new arrivals who are reapplying for shelter, end use of waiting rooms as shelter, Coalition for the Homeless (Mar. 15, 2024), https://www.coalitionforthehomeless.org/press/legal-aid-coalition-for-the-homeless-announce-settlement-in-callahan-v-carey-preserving-nycs-right-to-shelter-settlement-protects-the-right-to-shelter-for-anyone-in-need/#:~:text=(NEW%20YORK%2C%20NY)%20%E2%80%93,to%20Shelter%20for%20single%20adults%2C [https://perma.cc/N2X9-4C6Z].

[7] Id.

[8] Alternative Dispute Resolution, NYCourts.Gov https://ww2.nycourts.gov/ip/adr/mediation (last visited Feb. 22, 2025).

[9] Id.

[10] Protecting the Legal Right to Shelter, Coalition for the Homeless https://www.coalitionforthehomeless.org/our-programs/advocacy/legal-victories/protecting-the-legal-right-to-shelter/ [https://perma.cc/4UT4-LRAG] (last visited Feb. 22, 2025).

[11] Elizabeth Kim, City and state agree to secret mediation in shelter law dispute, averting court battle, Gothamist (Oct. 19, 2023), https://gothamist.com/news/city-and-state-agree-to-secret-mediation-in-shelter-law-dispute-averting-court-battle [https://perma.cc/9KEJ-KV74].

[12] Id.

[13] Ben Kochman & Craig McCarthy, Legal battle over whether NY’s ‘right to shelter’ law covers migrants goes to mediation, New York Post (Oct. 19, 2023, 5:46 PM), https://nypost.com/2023/10/19/right-to-shelter-relief-for-nyc-with-migrants-in-sights/ [https://perma.cc/MF9J-2TWP].

[14] Emma Whitford, NYC Mayor’s Latest Bid to Suspend Adult Shelter Rights Cools in Court, City Limits (Oct. 19, 2023), https://citylimits.org/2023/10/19/nyc-mayors-latest-bid-to-suspend-adult-shelter-rights-cools-in-court/ [https://perma.cc/4QHL-AGVR].

[15] Martha Guerrero, The Right to New York City: Immigrant and Unhoused Communities Navigate a Shelter System Under Attack, IEHS Online (Dec. 18, 2023), https://iehs.org/the-right-to-new-york-city-immigrant-and-unhoused-communities-navigate-a-shelter-system-under-attack/#:~:text=%E2%80%9CThere%20should%20not%20be%20a,solve%20whatever%20problem%20might%20exist. [https://perma.cc/N35P-Y4UZ].

[16] Legal Aid, supra note 6.

[17] Mayor Adams Announces Agreement With The Legal Aid Society In Callahan ‘Right To Shelter’ Mediation, Granting City Additional Flexibility During Migrant Humanitarian Crisis, supra note 4.