Opposition — Keeler v. Joy

Bs Spans Bia Us

5 14 198)

No. 81-48

IN THE

Supreme Cuurt of the United States

OCTOBER TERM, 1980

A

*

Jack Kxxin and Grace KxkLun, et al.,

Petitioners,

against

Danret W. Joy, individually and as Commissioner of the

office of Rent and Housing Maintenance of the City of

New York Department of Housing, Preservation and

Development,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

— —

— —

Harry MicRRLSON

Attorney for Respondent

17 John Street

New York, N.Y. 10038

Tel. No. (212) 566-5112

i

Counter-Statement of Questions Presented

The basic procedure to determine entitlement of a land-

tord to evict under rent control is an informal administra-

tive proceeding to determine whether the landlord satisfies

the essentially simple rent control requirements. The

administrative procedure includes notice to the tenant,

opportunity to rebut the landlord’s evidence, to be repre-

sented by counsel, to be heard at an informal conference

or hearing, the right to an administrative appeal, and to

judicial review in the courts.

Following are the issues presented below and in this

petition:

1. Does the overall administrative procedure employed

afford the tenants due process, considering the nature of

the issues in the administrative proceeding?

The Courts below found that due process was provided.

2. Did the District Court below have sufficient informa-

tion in the record before the court from the administra-

tive records of the 19 plaintiffs to find that there were no

substantial, relevant, or material issues of fact outstand-

ing, that the procedures employed satisfied due process

requirements, and that the defendant was entitled to sum-

mary judgment based on his request therefor in opposi-

tion to plaintiffs’ motions for summary judgment.

The District Court granted declaratory judgment to de-

fendant Rent Commissioner based cn material in the record

presented in opposition to the plaintiffs’ motions for sum-

mary judgment, and the Court of Appeals affirmed.

ii

Counter-Statement as to Parties to Proceeding

The persons listed in the footnote on petitioners’ page ii

were among the 19 plaintiffs in the District Court actions.

However only 7 of the 19 appealed to the Court of Ap-

peals, ie. Jack and Grace Keeler, Ralph Gulvino, Eliza-

beth Kravitz, Lee Fagin, Caterina Stolfi, and Angelo

Criscio. Class action status was denied at the District

Court.

iii

TABLE OF CONTENTS

Counter-Statement of Questions Presented ........

Counter-Stateemnt as to Parties to Proceeding ..

Genn e c e .

Table of Cases and Authorities

Counter-Statement of the Case

A. The Nature of the Case

B. Course of the Proceedings Below ..........

C. Disposition in the Courts Below ...........

WOE sini cw iis Yoda CRORE een

A. Petitioners’ Administrative Proceedings in

the. District Rent Office ............0eeeeeee

B. Petitioners’ Protest Proceedings (Adminis-

, „

The Controlling Law and Regulations .............

A. The NYC Rent Control Law .............

r eee

Porst I— The determinations below were correct be-

cause the administrative eviction proceedings

provided a fair procedure and constitutional due

r ha duane 01 «He MN Re Mle

Port Il—Summary Judgment was proper because

there were no material issues of fact to be de-

cided before the District Court

RO 6 vo cokncsBuh@eUR ⅛ V „.

12

iv TaBLe or Cases AND AUTHORITIES

PAGE

Benson Realty v. Koch, —— U.S. ——, 49 L. W. 3530,

101 S.Ct. 933, 67 L.Ed.2d 106 (1981) .......... 16

Bukawyn v. Joy, NYLJ Oct. 11, 1979, p. 6, col. .... 9

Califano v. Yamasaki, 442 U.S. 682, 99 S.Ct. 2545

, ˙ TT „ „„ 13

Davenport v. Berman, 420 F. 2d 294 (2d Cir.); cert.

den. 401 U.S. 956, 26 L. Ed. 2d 240, 91 S. Ct. 976

. 16

Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969); cert.

den., 400 U.S. 841, 91 S.Ct. 82, 27 L. Ed. 2d 175

(1970) —*—ꝛ2—Iw 4444444644 4 16

Goldberg v. Kelly, 397 U.S. 254, 25 L. Ed. 2d 287, 90

, . 13

Israel v. City Rent d Rehabilitation Admin., 285 F.

Supp. 908 (S. D. N. V. 1968ù/ ꝗ· uꝗinun 16

Kaplan v. Prince, 444 US. 938 (1979))1f 16

Local 33, Int'l Hod Carriers, etc. v. Mason Tenders,

291 F. 2d. 496 (2d Cir. 19617m-·-: cee eee eee 18

Lindsey v. Normet, 405 U.S. 56, 31 L.Ed. 2d 36, 92

r /7èÜÄÄÜ˙ „„ „ 15

Lowenschuss v. Kane, 520 F. 2d 255 (2d Cir. 1975). 18

Matthews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18,

, ͤ ð gj 55 . 12, 13

Mkwanazi v. Kenray Associates, Inc., 410 F.2d 1148,

r // ... 16

Wasservogel v. Meyerowitz, 300 N. V. 125 (1949) .... 14

TABLE OF CASES AND AUTHORITIES Vv

STATUTES AND Rule AND REGULATIONS AND

AvutTsorities Crrep

PAGE

NYC Rent Control Law, NYC

Admin. Code,

he Ta” 8 Gh oe wen ee 10, 11

iner voapectstsenss 11

NV. C. Rent & Eviction Regulations,

. A. 11, 12

6 Moore’s Federal Practice, Sec. 56.12 (2d ed. 1976) 18

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

Counter-Statement of the Case

A. The Nature of the Case

This is a test case constitutional challenge by tenants

against the procedures and methods of the New York City

rent agency for handling eviction cases, in use by the

State and City rent control agencies since at least 1950,

patterned on federal OPA and OHE procedures in effect

from 1943.

The New York City Rent Control Law specifies that the

New York City rent agency ‘‘shall’’ issue an administrative

order granting a Certificate of Eviction (authorizing the

landlord to commence a dispossess proceeding in the

courts) where an owner with sufficient equity in his prop-

erty seeks possession of a rent controlled tenant’s apart-

ment for his own use and occupancy or for use and oc-

cupancy by a member of the landlord’s immediate

family’’, upon a showing of ‘‘good faith’’ and, in certain

cases, upon an additional showing of ‘‘immediate and com-

pelling necessity’’.

The law in New York State is well settled that ‘‘good

faith” means an owner’s honest intention and desire to

gain possession for his own occupancy or for occupancy by

members of his immediate family. Where the apartment is

located in a building containing 12 or less apartments, and

the landlord does not already live in the building and seeks

the apartment for his own use, then he does not even have

to establish an immediate and compelling necessity, and he

need only establish that he will in good faith occupy the

apartment. The New York City Rent & Eviction Regula-

tions implement the New York City Rent Control Law and

define who is included in ‘‘immediate family’’ and also

define the landlord’s minimum financial ownership interest

for such applications as twenty percent of the purchase

price.

Every proceeding is adversary with notice to the af-

fected tenants of everything material that is considered.

An aggrieved party has the right to an administrative

appeal (protest proceeding), plus judicial review by Ar-

ticle 78 proceeding in the New York Supreme Court,

followed by appeals to the Appellate Division, the Court

of Appeals and, if a substantial constitutional question is

involved, to the United States Supreme Court.

The challenged procedures were specifically designed to

provide informal but careful and thorough inquiry and

processing of the contentions of little landlords’’ and

‘‘little tenants’’ without their need—unless they preferred

otherwise—to hire counsel.

Other grounds for obtaining a certificate of eviction

are also provided by the NYC Rent Law, but they are

not involved in this litigation. The only proceedings that

are challenged by these actions are the simple applica-

tions by landlords for their own occupancy, or occupancy

by a member of the landlord’s immediate family.

The tenants maintain they have a constitutionally pro-

tected right to continue to occupy their rent controlled

apartment, and that they cannot be deprived of their pos-

session without a trial-type hearing in the rent agency.

We contend that the tenants are entitled to no more right

to continue possession than the rent control legislation

provides. The rent control law, which creates their statu-

tory tenancy, states in several ways that landlords and

tenants are entitled to an opportunity to be heard, al-

though not a trial-type hearing. The challenged proce-

dures, which comply with the rent control law, are the

full measure of tenants’ rights, and the informal proceed-

ings are constitutionally adequate because they do in fact

provide all the essential elements of due process.

B. Course of the Proceedings Below

The Keeler case was commenced with 8 plaintiffs on

January 8, 1979 in the Eastern District of New York.

The Genuard case was commenced with 3 plaintiffs on

May 21, 1979 in the Southern District of New York but

was transferred to the Eastern District for consolidated

consideration with Keeler by Judge Platt. The Genuard

plaintiffs were also granted leave to serve four additional

(not substitute) complaints, thereby adding 8 more plain-

tiffs, for a total of 19 plaintiffs in the two actions. Each

of the six Keeler and Genuard complaints, which describe

in detail each administrative proceeding of its plaintiffs,

allege that these plaintiffs’ proceedings are typical of

those used by the defendant in determining landlord ap-

plications for a certificate of eviction.

The defendant’s Answers with affirmative defenses ex-

plained in detail each plaintiff’s then pending administra-

tive proceeding.

The plaintiffs then made two motions for summary judg-

ment and their moving affidavits and detailed supporting

statements again placed heavy reliance on claims that the

19 plaintiffs’ pending administrative proceedings deprived

them of due process.

Defendant’s answering affidavits requested that sum-

mary judgment be granted in defendant’s favor (A-303,

A-355). The defendant’s summary judgment opposing

affidavits and responses to the plaintiffs’ Rule 9(g) State-

ments set forth detailed summaries and explanations of

those pending administrative proceedings, to date. In

addition, the complete unabridged record of each of those

administrative proceedings, originally filed on motions for

a preliminary injunction, were updated and supple-

mented to the date of the summary judgment motions and

thereafter. This complete unabridged record of the 19

plaintiffs’ administrative proceedings is printed, pur-

4

suant to order of the Court of Appeals, as Appellee’s

Supplemental Appendix, pages AA-1 through AA-773.

C. Disposition in the Courts Below

In an 18 page opinion, 489 F. Supp. 568, the District

Court (Hon. Thomas C. Platt) ruled that: (1) adequate

notice is given to tenants; (2) oral conferences are con-

cededly always held and they are adequate to satisfy due

process; (3) a taped or stenographic record and a tran-

script thereof are not needed; (4) the Keeler plaintiffs’

administrative proceeding was properly resolved in the

District Rent Office, and they were represented by counsel

in the protest proceedings; (5) the proceedings collectively

consist of 3 separate notices, 2 opportunities to be heard,

de novo consideration on the merits on administrative

appeal, adequate record of the proceeding, decision with

reasons and Article 78 judicial review in the N. Y. Supreme

Court; (6) plaintiffs’ statutory expectation as a statu-

tory tenant is no greater than the limited right conferred

by the N.Y. City Rent Control Law; (7) the procedures

afford ample protection, fulfill due process requirements,

and are not constitutionally deficient; (8) significantly, at

Footnote 3, the District Court noted the statutory ‘‘bene-

factor“ under the NYC Rent Control Law is the property

owner, whose beneficence is clearly defined by the statute;

the existing administrative procedures which provide the

landlord with an opportunity to show the existence of

circumstances which meet the statutory standard, and the

tenant with the opportunity to contest the existence of

those circumstances, are sufficient to protect the tenant’s

interest in ensuring that the tenant is not dispossessed

without the statute requirements having been met; (9)

there is a rational basis for providing for administrative

hearings in certificate of eviction proceedings and the re-

quirement that non-payment and misconduct cases be heard

in the courts. Summary judgment was granted in de-

fendant’s favor.

On appeal by 7 of the 19 plaintiffs to the Court of

Appeals, that Court affirmed with one dissent. 641 Fed. 2d

1044.

Facts

Petitioners’ Administrative Proceedings

in the District Rent Office

In each tenant-plaintiff’s underlying administrative pro-

ceeding, challenged below, a landlord had filed an applica-

tion in the Brooklyn or Queens District Rent Office for

an order granting a certificate of eviction against the

plaintiff-tenant. Each application sought possession of

the plaintiff’s apartment for the landlord’s own personal

use and occupancy, or for occupancy by a member of the

landlord’s ‘‘immediate family.’’

Each application was entitled ‘‘LanpLorp’s APPLICATION

von CertiFicaTe oF Eviction (Occupancy by Landlord or

Immediate Family—Section 55 of the Regulations)’’ (AA-

25; AA-51; AA-108; AA-110; AA-137; AA-140; AA-189;

AA-241; AA-305; AA-338; AA-361; AA-429; AA-478;

AA-521; AA-579; AA-676; AA-738). (These “AA” ref-

erences are to Appellee’s Appendix to the Court of

Appeals).

The application form requires the landlord to state such

details as how much the landlord paid for the property;

when and from whom it was purchased, and relationship

if any to the seller; cash paid and source of such funds;

the then assessed value; name, address and details in-

cluding relationship to the landlord of the individual who

is to occupy the tenant’s apartment.

A copy of each application was sent to the tenant af-

fected, together with a ‘‘Notice of Commencement of Evic-

tion Proceedings Before the District Rent Director“ which

read:

„Attached hereto is a copy of an application for a

certificate filed by your landlord. The facts set forth

in the application may entitle him to such certificate

of eviction under the provisions of the rent regulations.

You are hereby afforded an opportunity to oppose

this application by filing an answer * * *

If you fail to file an answer opposing the application

within the time limit specified above, the District Rent

Director may grant a certificate of eviction.

To the Tenant: This is not an Eviction Notice.

You Are Not Required to Move Until Ordered by

A Court.’’

(Italics Added)

(AA-28; AA-53; AA-112; AA-143; AA-193; AA-244;

AA-307; AA-340; AA-363; AA-433; AA-480; AA-523;

AA-582; AA-740).

Each plaintiff filed an answer in opposition to the ap-

plication (AA-29; AA-54; AA-114; AA-115; AA-148; AA-

150; AA-194; AA-245; AA-308; AA-341; AA-364; AA-

434; AA-482; AA-524; AA-583; AA-678; AA-741).

An informal conference or hearing was scheduled in

each case, and the Notice of Conference read inter alia:

„All inquiries, communications, allegations, etc., hav-

ing to do with this proceeding must be submitted in

writing, in duplicate. Please do not telephone.

* * o

Both landlord and tenant may be represented by

counsel and may bring with them witnesses and writ-

ten evidence in support of their contentions.

Failure to appear at the time stated may be consid-

ered a default and may result in a determination

based upon the evidence in the record.

* * *

7

1. Landlord is hereby requested to produce at the

hearing, contract, deed, mortgage, closing statement

bank books and all other evidence relating to the pur-

chase.

(AA-30; AA-55; AA-119; AA-152; AA-198; AA-251;

AA-310; AA-344; AA-368; AA-437; AA-487; AA-526;

AA-590; AA-683; AA-742).

Additional documentation was filed in some of the pro-

ceedings such as doctor’s statement, certificate of birth

registration, title papers, a statement from a child care

center, a statement from a medical center, a statement from

landlord’s son, a deed, ete. (AA-27; AA-32; AA-35;

AA-206; AA-255; AA-485; AA-486; AA-527; AA-529;

AA-585; AA-591; AA-684; AA-754; AA-759). A co-own-

er’s affidavit was filed in some proceedings (AA-264;

AA-269; AA-312; AA-319; AA-369; AA-370). An affidavit

from the individual for whom occupancy was sought was

filed in some proceedings (AA-33; AA-57; AA-347). In

one proceeding, a notice was issued to the landlord to

reply to the tenant’s opposing answer (AA-249). In one

proceeding, the landlord’s attorney wrote a letter describ-

ing ground floor commercial storage space the tenant

claimed the landlord should occupy instead of her apart-

ment (AA-263). A physical inspection by an official rent

agency inspector was had in some proceedings (AA-36;

AA-265; AA-330; AA-751).

An oral conference or hearing was held in the District

Rent Office in each proceeding (AA-279; AA-324). The rec-

ord of each proceeding contains a Report of Conference,

together with the Examiner’s summary findings, and deci-

sion (AA-31; AA-58; AA-130; AA-154; AA-204; AA-253

and AA-272; AA-316; AA-332; AA-346; AA-372; AA-438;

AA-492; AA-532; AA-593; AA-595; AA-686; AA-762).

Each proceeding also contains an Examiner’s Progress

Sheet, containing such entries as the dates, when notices,

etc., were issued (AA-38; AA-60; AA-133; AA-162;

AA-213; AA-270; AA-272; AA-321; AA-348; AA-375;

AA-441; AA-494; AA-535; AA-597; AA-688; AA-760).

Each proceeding was decided by the Examiner who had

seen and heard the parties, Lover Deposition, Appendix—

Exhibit D at p. 6 lines 15-17; p. 7 lines 1, 2; p. 13 lines

5-6; p. 18 line 17; p. 19 line 6; A-285; A-329; Warden

Deposition, Appendix—Exhibit C at p. 5 lines 1-6; p. 12

lines 8-15; p. 14 lines 18-21. There was no contrary evi-

dence submitted in the motion for summary judgment.

Where the order granted the landlord’s application for

a certificate of eviction, it specified that the apartment

was for occupancy solely“ by the named individuals as

represented in the proceeding (AA-39; AA-61; AA-164;

AA-217; AA-273; AA-350; AA-376; AA-442; AA-496;

AA-537; AA-598; AA-689). In some of the proceedings,

the landlord’s application was denied (AA-134; AA-135;

AA-335); and in another, the proceeding was terminated

(AA-163).

Plaintiffs’ Protest Proceedings

(Administrative Appeal)

Protests (administrative appeals) were filed by 13

tenant plaintiffs (AA-40; AA-63; AA-166; AA-221; AA-

275; AA-352; AA-378; AA-444; AA-498; AA-539; AA-600;

AA-691; AA-766).

Answers in opposition were filed by 11 of the plaintiffs’

landlords (AA-44; AA-69; AA-173; AA-229; AA-280;

AA-354; AA-383; AA-460; AA-504; AA-610; AA-698).

In some of the proceedings, a Notice of Opportunity to

Submit Evidence was issued (AA-72; AA-100). In other

proceedings, additional evidence, such as satisfaction cer-

tificate, Veteran’s Administration Certificate of Eligibil-

ity, mortgage, bond, satisfaction certificate, deed, contract,

mortgage note, purchase money mortgage, closing state-

ment, rent receipt, was filed (AA-73; AA-91: AA-158;

AA-394; AA-555; AA-613; AA-616; AA-618; AA-621;

AA-622.

In some of the protest proceedings, a Notice of Confer-

ence was issued (AA-78; AA-178; AA-233; AA-285; AA-

392; AA-466; AA-509; AA-548; AA-612). Each such pro-

ceeding contains the hearing attorney’s report of the

hearing (AA-86; AA-289; AA-419; AA-420; AA-468; AA-

548; AA-552; AA-623; AA625) and in one of the plain-

tiffs’ protest proceedings, still another hearing was had

in the protest proceeding (AA-101).

In one of the proceedings, the Notice of Hearing in-

formed the parties they may provide an interpreter (AA-

612).

Each order determining a protest appeal proceeding

was decided by the hearing attorney (Rabin Deposition,

Appendix—Exhibit E p. 4 line 24—p. 5, line 3; p. 34, line

11-13, 23-24; p. 35, line 25—p. 36 line 2; p. 36, line 12-13;

p. 37, line 6; p. 44, line 10-12; Joy Deposition Appendix

—Exhibit B p. 8, line 20-25; p. 52, line 5-10; p. 104, line

24— p. 105, line 1-5; p. 110, line 6-9. There was no contrary

evidence submitted in the summary judgment application

or otherwise.

An Order & Opinion Granting Tenant’s Protest was

issued in three of the plaintiffs’ proceedings (AA-102; AA-

185; AA-573); an Order & Opinion Denying Tenant’s Pro-

test was issued in six of the plaintiffs’ proceedings (AA-

48; AA-293; AA-422; AA-473; AA-625; AA-701); and an

Order & Opinion Dismissing Tenant’s Protest was issued

in three of the plaintiffs’ proceedings (AA-238; AA-356;

AA-516).

In two proceedings, the tenant plaintiff commenced an

Article 78 judicial review proceeding in the New York

Supreme Court. In the first, Matter of Bukawyn v. Joy,

New York Law Journal, Oct. 11, 1979, p. 6, col. 1, the

New York Supreme Court, New York County, denied the

petition and dismissed the tenant’s Article 78 proceed-

ing, fully upholding the Rent Commissioner’s order (AA-

297; AA-303). No notice of appeal to the New York Ap-

pellate Division was filed, and that order became final

10

under New York law (A-334-342). In another, Matter of

Stolfi v. Joy, unreported, the tenant’s Article 78 proceeding

in the New York Supreme Court, Kings County, (AA-629

to AA-652), resulted in a judgment affirming the certificate

of eviction, following which the tenant filed a notice of

appeal to the Appellate Division but never perfected the

appeal.

The Controlling Law and Regulations

The NYC Rent Control Law

The NYC Rent Control Law provides (NYC Admin.

Code, see Y51-6.0 subd. b(1) [See in McKinney’s Unconsol.

Laws, third unnumbered vol. containing sec. 8581 to 8700,

p. 421, 423]:

„Sec. Y51-6.0. Evictions

b. * * * no tenant shall be removed or evicted on

grounds other than those stated in subd. a of this

section unless on application of the landlord the city

rent agency shall issue an order granting a certificate

of eviction * * * permitting the landlord to pursue

his remedies at law. The city rent agency shall issue

such an order whenever it finds that:

(1) The landlord seeks in good faith to recover pos-

session of housing accommodation because of immedi-

ate and compelling necessity for his own personal

use and occupancy or for the use and occupancy of his

immediate family * * *

(Italics ours)

The NYC Rent Control Law further specifies that an

immediate and compelling necessity need not be estab-

lished under the following circumstances (NYC Admin.

Code, sec. Y51-6.0, subd. b.(1) [MeKinney's supra, p. 423]:

% provided, however, that where the housing ac-

commodation is located in a building containing twelve

or less housing accommodations and the landlord does

not reside in the building and the landlord seeks in

11

good faith to recover possession for his own personal

use and occupancy, an immediate and compelling nec-

essity need not be established: * * *”’

The NYC Rent Control Law does not require trial-type

hearings in proceedings as are involved here (Admin.

Code, Sec. Y51-8.0, subd. e Procedure [McKinney’s

supra, p. 437]:

„Any proceedings under this section may be limited

* * * to the filing of affidavits, or other written evi-

dence, and the filing of briefs * * *”.

The Regulations

The statutory provisions are implemented by Sec. 55,

subd. 2 of the N.Y.C. Rent & Eviction Regulations, which

provide (McKinney’s, supra, p. 541 et seq.) :

„Sec. 55. Occupancy by landlord or immediate family

a. A certificate shall be issued where the landlord

seeks in good faith to recover possession of a housing

accommodation because of immediate and compelling

necessity for his own personal use and occupancy, or

for the use and occupancy of his immediate family

As used in this paragraph, the term ‘immediate

family’ includes only a son, daughter, grandson,

granddaughter, stepson, stepdaughter, father, mother,

father-in-law, mother-in-law, grandfather, grand-

mother, stepfather or stepmother.’’

(Italics ours)

As to landlord’s financial ownership interest, the said

Regulations provide (see McKimney’s supra at p. 546):

„Sec. 55. Oceupancy of landlord or immediate family.

„d. Where the landlord purchased and thereby ac-

quired title to the premises on or after September 17,

1947, no certificate shall be issued under this section

12

unless the landlord on or before the date of the filing

of the application has made a payment or payments

totalling at least 20% of the purchase price or the

assessed valuation of the premises, whichever is the

greater; provided, however, that where the Adminis-

trator finds (1) that equivalent accommodations are

available for rent into which the tenant can move with-

out substantial hardship or loss, or (2) that undue

hardship would result to the landlord a certificate may

be issued although less than 20% has been paid. The

requirements of this paragraph d shall not apply

where the landlord is a former member of the armed

forces of the U.S.A. who obtained a loan for use in

purchasing housing accommodations guaranteed by the

Administrator of Veterans Affairs.’’

POINT |

The determinations below were correct because the

administrative eviction proceedings provided a fair

procedure and constitutional due process.

The requirements of procedural due process are not in-

flexible, but depend upon the circumstances of particular

situations. In Matthews v. Eldridge, 424 U.S. 319, 47

L.Ed.2d 18, 96 S.Ct. 893 (1976), this Court stated as to

due process in administrative proceedings, at 424 U.S. 348,

349:

„»The ultimate balance involved a determination

as to when, under our constitutional system, judicial-

type procedures must be imposed upon administrative

action to assure fairness. We reiterate the wise ad-

monishment of Mr. Justice Frankfurter that differ-

ences in the origin and function of administrative

agencies ‘preclude wholesale transplantation of the

rules of procedure, trial, and review which have

evolved from the history and experience of courts’.

(citing) The judicial model of an evidentiary hearing

13

is neither a required, nor even the most effective,

method of decision making, in all circumstances. * * *

All that is necessary is that the procedures be tailored

* * * to insure that they are given a meaningful oppor-

tunity to present their case.

In assessing what process is due * *, substantial

weight must be given to the good-faith judgments of

the individuals of social welfare programs that the

procedures they have provided assure fair considera-

tion. *® @ @)9)

(Italics ours)

In response to petitioners’ claim that tenants are en-

titled to a hearing prior to eviction from their rent con-

trolled apartments, we contend that the record of this case

proves that at least one oral Conference or Hearing is

had in every proceeding involving an application for a

certificate of eviction and more than one is held where

needed. Nowhere have the appellants produced a single

administrative proceeding where there was no oral Con-

ference or Hearing (A-368; A-369; A-370); (AA-1 through

AA-773; Lover Deposition, p. 10, lines 9-17).

The words conference“, and ‘‘hearing’’ (used by de-

fendant interchangeably throughout this litigation), are

adversary, due process hearings (A-368-370).

Petitioners’ reliance on Califano v. Yamasaki, 442 US.

682 (1979), is misplaced. The six requirements of an oral

hearing, referred to in the opinion of the Court (442 U.S.

692) are allowed in the procedures here under attack, in-

cluding the right to cross-examine. A transcript of the

hearing was not required by the Circuit Court of Appeals,

564 F. 2d at 1235, or by this Court.

Plaintiffs cite Goldberg v. Kelly, 397 U.S. 254, 25 L.Ed.

2d 287, 90 S.Ct. 1011 (1970). However, in Davenport v.

14

Altman, 71 Civ. 4263 (S. D. N. V., Gurfein, D.J.); aff’d 492

F.2d 1237; cert. den., 417 U.S. 969, 41 L.Ed.2d 1140, 94

S. Ct. 3173 (1974), a landlord’s claim of lack of due process

was considered by the District Court in the light of Gold-

berg v. Kelly, and was rejected with this language dis-

missing the complaint:

„The plaintiff now contends in this case that he was

not granted a ‘due process’ hearing before the deter-

mination by the City Rent Administration. But Magis-

trate Schreiber found and I confirmed that [Dluring

these proceedings, plaintiff was represented by coun-

sel and afforded the opportunity to answer the charge

and present evidence in writing (Finding No. 3). That

is, in any event, sufficient for due process in rent con-

trol cases. Bowles v. Willingham, 321 U.S. 503, 519-

520 (1943).’ ’’

Petitioners fail completely to show a constitutionally

protected right or “entitlement” to a trial-type hearing.

Their asserted “entitlement secured by statute”, “statu-

tory entitlement”, “right or benefit conferred by legisla-

tion” is no greater than the legislation which created it,

and the NYC Rent Control Law is therefore the measure

of the right conferred and challenged in this action.

In Wasservogel v. Meyerowitz, 300 N.Y. 125 (1949), the

N. Y. Court of Appeals put into perspective a ‘‘statutory

tenancy.’’ (Desmond, J.):

“The tenants then stayed in possession, not under the

original lease but as statutory tenants only. As such,

each tenant * was in the landlord’s property ‘not

by virtue of an agreement, express or implied * * * but

by virtue of the compulsion which the law exerts on

the landlord to allow him to remain’. Stern v. Equi-

table Tr. Co., 238 N.Y. 267.

15

A statutory tenant holds over not because he has any

property right or estate in the premises, but because

emergency laws forbid his eviction * * * Bowles v.

Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892.”

With the rent control law’s statutory benefits, the tenant

must also bear the statute’s burdens.

On the other hand, a landlord’s right to possession is

related to constitutionally protected rights to property.

In Lindsey v. Normet, 405 U.S. 56, 74, 31 L.E.2d 36, 50,

this Court stated:

“Absent constitutional mandate, * * * the definition of

landlord-tenant relationships are legislative, not judi-

cial, functions. Nor should be forget that the Consti-

tution expressly protects against confiscation of pri-

vate property or the income therefrom.”

Continuously since 1950, when the then State Legislature

and in 1962, when the City Council enacted the rent law,

they expressly specified that the rent control agency must

issue a certificate of eviction so that a landlord or a mem-

ber of his immediate family (and in specified instances

when there is an immediate and compelling necessity

therefor) shall be able to occupy his own property. Unlike

a government agency dispensing a benefit such as welfare

or disability insurance, a rent control agency proceeding

does not involve solely the tenant versus the government.

The affected landlord’s rights are always involved. For

example, in the administrative proceeding affecting plain-

tiffs Keeler, the administrative record clearly shows the

affected landlord (husband and wife) is the owner of a

three-family house, occupying one apartment therein and

requesting possession of the Keeler ground floor apartment

for the wife’s mother because the latter, a widow living

alone o nthe third (top) floor elsewhere, has been advised

by her doctor not to climb stairs as part of her treatment

because she had been operated on for a painful tumor of

the lower back and she suffers from low back pain, diabetes

16

mellitus, severe rhematoid arthritis, lumbo sacro spline and

knee joint (AA-25; AA-27; AA-31; AA-32; A-123; A-125;

A-130).

In other constitutional attacks on the New York City

rent control law, the federal courts have repeatedly upheld

the law and its administration, Fisen v. Eastman, 421 F. 2d

560 (2d Cir. 1969); cert. den. 400 U.S. 841, 91 S.Ct. 82, 27

L.Ed.2d 75 (1970); Israel v. City Rent d Rehabilitation

Admin., 285 F.Supp. 908 (S.D.N.Y. 1968); Davenport v.

Berman, 420 F.2d 294 (2d Cir.); cert. den. 401 U.S. 956,

26 L.Ed.2d 240, 91 S.Ct. 976 (1971); Mkwanazi v. Ken Ray

Associates, Inc., 410 F.2d 1143, 1144.

Twice recently this Court has dismissed appeals in rent

control cases for want of a substantial federal question.

Kaplan v. Prince, 444 US 938 (1979); Benson Realty v.

Koch, US. , 49 L. W. 3530, 101 8. Ot. 933, 67 L. Ed.

2d 106 (1981).

In Eisen v. Eastman, 421 F.2d 560, 567, 568, 569 (2d

Cir.); cert. den., 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 75

(1970), the Court of Appeals: (a) affirmed dismissal of a

civil rights complaint; and (b) commented on the plain-

tiff’s failure to avail himself of available state remedies:

% the consequences of compelling federal courts

to pass upon all complaints of unconstitutional acts by

state and local officials at the lowest level, without any

requirement of appeal to higher ones, would be so de-

structive of proper concepts of federalism and so need-

lessly burdensome to the federal courts that it is ap-

propriate to determine whether the decisions have not

been given a greater sweep than the Court intended,

We shall need much clearer direction than the

court has yet given or, we believe, will give, before we

hold that plaintiff in such cases may turn their backs

on state administrative remedies and rush into a fed-

eral forum, whether their actions fall under the Civil

Rights Act or come under general federal jurisdiction.”

(Italies ours)

17

POINT II

Summary Judgment was proper because there were

no material issues of fact to be decided before the

District Court.

Petitioners, not the defendant-respondent, selected the

particular 19 plaintiffs in 16 administrative proceedings to

be used to demonstrate their declaratory judgment com-

plaints alleging constitutionally inadequate and deficient

procedures for hearing and determining landlord applica-

tions for certificates of eviction.

In addition to the full description of the administrative

procedures and proceedings described in the (a) pleadings;

(b) the affidavits of both sides on the five motions for a

preliminary injunction; (c) the affidavits of both sides on

the two motions for summary judgment; (d) the two com-

prehensive Rule 9(g) Statements by both sides, the Dis-

trict Court also had before it the complete unabridged

record of each of the 19 plaintiffs in 16 administrative

proceedings. Under the circumstances, the court had a

full statement of the claims as articulated by each side

plus the complete original papers, so that it was not left in

doubt as to any material or relevant issues of fact. The

few areas of remaining dispute all clearly involve facts

not central to the question of whether the overall rent con-

trol procedure substantially provides due process. Quibbles

about isolated details do not detract from the broad picture

of institutionalized due process derived from reading the

complete administrative records of all 19 plaintiffs evie-

tion cases in the record of this case.

The District Court clearly had sufficient data on this

record to find that there were no substantial issues of fact

outstanding, and that the procedures employed satisfied

due process requirements.

The petitioners admitted there were no triable issues of

fact when they made their two motions for summary judg-

18

ment, and they are now taking an inconsistent position

when they complain about not having a trial. We agreed

there were no triable issues and requested that summary

judgment, on plaintiffs’ motion, be granted to defendant

(A-303, A-355). Petitioners are in error in claiming that

the District Court granted summary judgment sua sponte.

Nevertheless, case law upholds granting of summary judg-

ment even without a request for such relief. The District

Court properly granted declaratory judgment to defendant

Rent Commissioner, based on the very full record before it.

In Lowenschuss v. Kane, 520 F.2d 255, 261 (2d Cir. 1975),

the Court of Appeals held:

„We have sanctioned a sua spoute award by the court

of summary judgment to a non-moving party where it

appeared fiom the papers, affidavits and other proof

submitted y the parties that there were no disputed

issues of material fact and that judgment for the non-

moving party would be appropriate as a matter of law.

Local 33, Int ' Hod Carriers Union v. Mason Tenders

Dist. Council, 291 F.2d 496, 505 (2d Cir. 1961)“

In Local 33, Int’l Hod Carriers etc. v. Mason Tenders, 291

F. 2d 496 (2d Cir. 1961), the court held (Medina, C. J.):

„There remains the question whether there is au-

thority to grant summary judgment for defendants in

the absence of a cross-motion for summary judgment.

It is Professor Moore’s view that such a motion would

be a mere formality and is unnecessary in a situation

such as we have before us, where the proofs before the

court show plaintiff has no case. Moore’s Federal

Practice, vol. 6, pp. 2088-9 * * *’’

To the same effect, see:

6 Moore’s Federal Practice, Sec. 56.12 (2d ed.

1976).

19

CONCLUSION

For all of the foregoing reasons, the petition for

certiorari should in all respects be denied.

Dated: New York, New York

September, 1981

Respectfully submitted,

Harry MicHELson

Attorney for Respondent

17 John Street

New York, New York 10038

Tel. No. (212) 566-5112