Auburn N.Y. Municipal Water User Opposes City's Motion to End Litigation Over Constitutionality of Termination and Denial Practices

In October 2008 a tenant user of municipal water utility service provided by the City of Auburn, N.Y. commenced a lawsuit in U.S. District Court challenging constitutionality of the City's utility water service practices. The tenant is represented by PULP.

The house the Plaintiff lived in was in foreclosure and the absentee owner had stopped paying Auburn for water and sewer service. Auburn shut water service off due to the owner's unpaid bills, without mailed notice to the tenant as the occupant, and the posted notice of termination gave no notice of an opportunity for a hearing.

When the tenant requested water service after it was shut off due to the owner's nonpayment, the City of Auburn, N.Y., acting under its policies, demanded that the tenant pay for all the owner's indebtedness for prior unpaid bills in the owner's name as a condition of receiving utility water service.

The Plaintiff attempted but could not afford to pay the owner's bills. Although she paid more than the cost of water service provided to her after the time she first requested service in May 2008, the City applied the payments to the owner's past bills, and repeatedly shut service off.

The Plaintiff experienced several water service shutoffs in the Spring and Summer of 2008 that eventually threatened loss of her housing in September 2008, when Auburn shut off water service and then posted a notice the next day that ordered the Plaintiff to vacate the premises immediately because the house was unfit for human habitation -- due to the absence of water service.

The City did not turn water on in response to PULP's request on behalf of the tenant for service pending a hearing at which she could show that she was entitled to service. See Municipal Water Companies Exempt from HEFPA Must Still Provide Due Process and Equal Protection to Tenant Users, PULP Network October 3, 2008.

Only after a federal action was commenced in October 2009 and a motion for a preliminary injunction was filed and an emergency court order was requested did Auburn turn the water on and retract the evacuation notice and thus moot the need for a ruling on the motion for preliminary relief. See Auburn Restores Water Service After PULP Files Federal Lawsuit and Seeks Preliminary Injunction for Tenant in Property Subject to Foreclosure, PULP Network, October 16, 2008.

In November 2009, after completing discovery, the Plaintiff filed a motion for partial summary judgment, including a brief in support of a request for a ruling that the City of Auburn violated her rights to procedural and substantive due process of law and to equal protection of the law. See Auburn Tenant Seeks Judgment that Water Termination was Unconstitutional, December 04, 2009.

On December 24, 2009 the City of Auburn countered by filing a cross motion for summary judgment seeking to dismiss the case.

On January 11, 2010, PULP filed a brief on behalf of the Plaintiff in opposition to the City of Auburn's motion. The brief addresses the City of Auburn's defense, which claims tenants have no interest under New York law in water service that is protected by due process and that its policies and practices regarding termination and denial of service to tenant water users were constitutional.