Keeler v. Joy

TENNEY, District Judge:

Although I concur with the decision reached by Judge Moore, I think it necessary to respond to the objections raised in the dissent and to further explore the legal principles governing this case. I therefore prefer to express my views in a separate concurrence.

Issues of Fact

Summary judgment should not be granted where there are unresolved issues as to any material fact and the district court must resolve all ambiguities and draw all inferences in favor of the party opposing the motion. SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978); Fournier v. Canadian Pac. R. R., 512 F.2d 317, 318 (2d Cir. 1975); Fed.R.Civ.P. 56(c). While constitutional issues should not be decided on an incomplete factual basis, “summary judgment may be rendered . . . where the record is adequate for the constitutional question presented and there is no genuine issue of material fact.” 6 Moore’s Federal Practice ¶ 56.17[10], at 56-772 to 776 (2d ed. 1976); see, e. g., Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Gotkin v. Miller, 514 F.2d 125 (2d Cir. 1975); Beal v. Lindsay, 468 F.2d 287 (2d Cir. 1972).

In Judge Kearse’s view, summary judgment should not have been granted in this case because material factual issues were disputed. First, she contends, material issues exist regarding the adequacy of the notice given to the tenant by the rent control agency. Second, she states that many questions remain unanswered with respect to the tenant conferences. I disagree with Judge Kearse’s first conclusion and find that no genuine factual issues remain concerning the notice provision. And while I agree that certain facts about the tenant conferences are disputed, I do not think these issues, as reflected by the record below, rise to constitutional proportions and I therefore find them not material.

1. Notice

Each tenant-plaintiff in this action received a document entitled Notice of Commencement of Eviction Proceedings Before The District Rent and Rehabilitation Director (“Notice”). This Notice states:

Attached hereto is a copy of an application for a certificate of eviction 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 thereto upon the answer forms enclosed herewith. The original of your answer must be sworn to before a notary public or other person authorized to administer oaths and must be returned to this office together with one copy, within seven days from the date appearing at the bottom of this notice.
If you fail to file an answer opposing the application within the time limit specified above, the District Rent and Rehabilitation Director may grant a certificate of eviction.

The landlord’s application form attached to the Notice states the request for a Certificate of Eviction is based on “occupancy by landlord or immediate family.” The application asks for the name of the person for whom the apartment is sought and provides a space for the landlord’s “further statement” explaining why the apartment is needed. The application’s directions essentially embody the New York City Rent & *1048Eviction Regulation (“Regulation”) that authorizes eviction in such cases. Item 12 directs the landlord to list facts indicating “an immediate and compelling necessity for personal use and occupancy” and states that such a necessity need not be established if the apartment is located in a building containing twelve or fewer accommodations. Therefore, although the substance of the Regulation is not described in the tenant’s Notice, it can be gleaned from the landlord’s application attached to the Notice.

According to the dissent, the most troublesome aspect of the Notice is the boldface legend that appears on the bottom and states: “THIS IS NOT AN EVICTION NOTICE. YOU ARE NOT REQUIRED TO MOVE UNTIL ORDERED BY A COURT.” Judge Kearse argues that tenants do not realize the significance of the Notice and may be lulled into the false belief that the eviction issue will be litigated in court and not resolved by the agency that sent the Notice. In her view, neither this Notice nor the Notice of Conference that follows “informs the tenant that the merits of his conviction will be conclusively determined before he gets to the court.” The Notice could thus create a “misimpression” or cause a tenant to “sleep on his rights.” The dissent therefore concludes that “material issues” remain unresolved and that the adequacy of the Notice cannot be determined on a motion for summary judgment.

I do not think that summary judgment is precluded by the question of whether the Notice misleads tenants and causes them to make only a token response to the landlord’s application. The adequacy of the Notice must be determined by applying the legal standard that has been established in comparable due process cases. This standard, described below, can be applied to the Notice on its face because it does not demand that court know the precise impact an announcement or document makes in every instance. While the specifics of a given case may be instructive or even necessary under certain circumstances, I find that, on its face, the Notice challenged here does not deprive the tenants of due process. This conclusion rests on a legal determination that would not be disturbed by the resolution of certain unanswered — but in my view not material — factual questions.

In the frequently cited case of Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950), the Supreme Court stated that “[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” See, e. g., Wolff v. McDonnell, 418 U.S. 539, 564, 94 S.Ct. 2963, 2978, 41 L.Ed.2d 935 (1974); Morrissey v. Brewer, 408 U.S. 471, 486-87, 92 S.Ct. 2593, 2602-2603, 33 L.Ed.2d 484 (1972); In re Gault, 387 U.S. 1, 33, 87 S.Ct. 1428, 1446, 18 L.Ed.2d 527 (1967). As more recently described by the Court, “[t]he purpose of notice under the Due Process Clause is to apprise the affected individual of, and permit adequate preparation for, an impending hearing.” Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 14, 98 S.Ct. 1554, 1563, 56 L.Ed.2d 30 (1978). In Memphis Light, the Supreme Court found inadequate a utility company’s final notice which stated that the customer’s payment was overdue and that service would be terminated if payment was not made on a certain date. According to the Court, “[n]o mention was made of a procedure for the disposition of a disputed claim,” although flyers distributed to customers informed them in a general fashion that billing problems could be discussed with someone at the utility company’s office. Id. at 13, 98 S.Ct. at 1562.

In contrast to the final notice challenged in Memphis Light, the Notice at issue here expressly informs the tenant that he can oppose the landlord’s application by filing an answer. The Notice also states that a Certificate of Eviction may be issued if no answer is filed. This document, therefore, is certainly sufficient to apprise the tenant of the pendency of the action and to afford him an opportunity to present objections. *1049See Mullane v. Central Hanover Trust Co., supra, 339 U.S. at 314, 70 S.Ct. at 657. Furthermore, this is not the only information the tenant receives regarding his ability to contest the landlord’s application. The Notice of Conference sent to each tenant státes that the parties may be represented by counsel and may bring witnesses and written evidence to support their contentions. This announcement also informs the tenant that failure to appear at the conference “may be considered a default and may result in a determination based upon the evidence in the record.” This information, along with the initial Notice and the accompanying landlord’s application, allows for “adequate preparation” for the conference. See Memphis Light, Gas & Water Div. v. Craft, supra, 436 U.S. at 14, 98 S.Ct. at 1562.

The tenant-plaintiffs in this action argue that the Notice is inadequate because it does not explain what the relevant issues are or describe what factors are important in making the eviction determination. Similarly, plaintiffs contend that the subsequent Notice of Conference does not cure this deficiency because it does not explain what contentions the witnesses and written evidence should support. Most tenants, therefore, simply present evidence of their own personal and financial hardships which, unfortunately, is largely irrelevant to the issue at hand. Finally, plaintiffs argue that even the Certificate of Eviction fails to inform the tenants of the grounds on which the Certificate can be challenged if a protest is filed with the Commissioner of the Department of Rent and Housing Maintenance (“Commissioner”).

Undoubtedly, the notices challenged here are not models of clarity and draftsmanship and could be easily improved. That, however, is not the standard which this Court must apply. Due process demands that the tenants be informed of their right to object to the landlord’s application and that they can adequately prepare for this opportunity. The initial Notice and Notice of Conference satisfy that demand because the relevant information can be gleaned from the documents, additional questions or mis-

understandings may be resolved at the conferences, and the Notice of Conference indicates that inquiries may be made beforehand. Accordingly, I conclude that the notices involved in these proceedings do not violate constitutional requirements.

2. Tenant Conferences

The court below rejected the plaintiffs’ argument that they were constitutionally entitled to a hearing prior to eviction. As noted by the district court, a hearing may be granted on request or sua sponte in the discretion of the District Rent Director. Furthermore, the court stated:

the conferences before the hearing examiner, which are concededly always held, are adequate to satisfy due process in these proceedings. Tenants may, after all, request and obtain subpoenas for and/or produce witnesses, exhibits, affidavits (all of which are considered) inspect opposing papers and other materials and question opposing witnesses and/or present and file material in rebuttal.

489 F.Supp. at 573. I agree with Judge Kearse’s view that the record evidences disputed issues of fact and does not fully support the district court’s statements. As noted by the dissent, unanswered or disputed questions remain regarding the availability of a subpoena and a tenant’s right to cross-examine witnesses, to inspect documents, and to file rebuttal material. Judge Kearse also questions whether the plaintiffs ever conceded that conferences were always held. As she points out, the record indicates that in the case of Fay Genaurd, the rent examiner met separately with the tenant and the landlord. I have less difficulty, however, accepting the proposition that a conference was made available for each of the tenant-plaintiffs in this action. The Commissioner’s evidence supports his assertion that separate meetings were held with Mrs. Genaurd and her landlord because of confusion over dates that resulted from granting several adjournments to both parties. Mrs. Genaurd was granted an oral hearing when she filed a protest from the rent examiner’s decision, but this hearing *1050was never held because she has already vacated the apartment. The other tenants in this action did participate in some type of proceeding before the rent examiner. The question is not whether these proceedings constituted a conference per se, but whether they deprived the tenants of due process of law by failing to provide an adequate opportunity to challenge the bases of the landlord’s claims.

The extensive record in this case describes the general procedures followed in each plaintiff’s case. The district court, therefore, was hardly in the dark with respect to these proceedings. Of course, certain questions of fact remain unresolved, particularly those mentioned by Judge Kearse and reiterated above. And on a motion for summary judgment, all ambiguities and inferences must be resolved in favor of the party opposing the motion. Yet even construing these issues in the light most favorable to the plaintiffs’ case, I find no unconstitutional infirmity with the procedures provided for in New York City’s Regulations and implemented in the manner reflected by this record. For the reasons discussed below, I conclude that the procedures afforded the tenants in this action did not fall below what process was due.

Due Process

The tenant-plaintiffs in this case, who have been forced to vacate their apartments under adverse circumstances and extreme hardship, raise many serious considerations in challenging the system that allows for their eviction. The fact remains, however, that the right at issue here — the right to avoid eviction from a privately owned building — is granted solely by statute and can thus be similarly limited. Cf. Kovarsky v. H. D. A., 31 N.Y.2d 184, 335 N.Y.S.2d 383, 286 N.E.2d 882 (1972) (New York City Rent Stabilization Law does not arbitrarily limit a more extensive right but rather creates only certain limited rights that tenants did not previously have). In Arnett v. Kennedy, 416 U.S. 134, 154, 94 S.Ct. 1633, 1644, 40 L.Ed.2d 15 (1976), the Supreme Court stated, “where the grant of a substantive right is inextricably intertwined with the limitations on procedure which are to be employed in determining that right, a litigant . . . must take the bitter with the sweet.” Here, the tenant’s statutorily defined right is not an abstract guarantee against eviction in the absence of the landlord’s “good faith” need. Rather, it is a guarantee enforced and limited by the procedures the City has prescribed for determining whether the landlord in “good faith” seeks to recover the apartment for his own or his family’s personal use. See id. at 152, 94 S.Ct. at 1643.

This does not mean, however, that this statutory right can be revoked in a manner inconsistent with due process requirements or that the City’s procedures are immune from constitutional challenge. As subsequently explained by the Supreme Court, the Arnett decision “concluded that because the employee could only be discharged for cause, he had a property interest which was entitled to constitutional protection.” Bishop v. Wood, 426 U.S. 341, 345 n.8, 96 S.Ct. 2074, 2078 n.8, 48 L.Ed.2d 684 (1976). Indeed, six members of the Arnett Court adhered to the proposition that “the adequacy of statutory procedures for deprivation of a statutorily created property interest must be analyzed in constitutional terms.” Arnett v. Kennedy, supra, 416 U.S. at 134, 94 S.Ct. at 1634 (Powell, J., concurring in an opinion joined by Blackmun, J.); id. at 211, 94 S.Ct. at 1672 (Marshall, J., dissenting in an opinion joined by Douglas and Brennan, JJ.); see Bishop v. Wood, supra, 426 U.S. at 345 n.8, 96 S.Ct. at 2078 n.8. In this case, the tenant’s right to an apartment can be terminated upon a showing- that the landlord truly intends to use it for himself or his family. As described in Judge Kearse’s dissent, because the landlord’s freedom to evict the tenant is conditioned upon “good faith,” the tenant must have an opportunity to contest this issue “at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976), quoting Armstrong v. Mamo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965); see Memphis Light, Gas & Water Div. v. Craft, *1051supra, 436 U.S. at 11, 98 S.Ct. at 1561 (“Because petitioners may terminate service only ‘for cause,’ respondents assert a ‘legitimate claim of entitlement’ within the protection of the Due Process Clause.”) (footnote omitted). Upon reviewing the procedures followed here in light of the interests at stake, I have concluded that the Regulations provide for “such procedural protections as the particular situation demands.” Mathews v. Eldridge, supra, 424 U.S. at 334, 96 S.Ct. at 902.

Three factors should be considered in identifying the “specific dictates” of due process: (1) the private interests affected; (2) the risk of an erroneous deprivation and the probable value of additional safeguards; and (3) the government’s interest, in light of the function performed and the fiscal or administrative burdens that additional safeguards would entail. Id. at 335, 96 S.Ct. at 903. In contrast to many other cases in which this tripartite analysis has been applied, the instant action involves two sets of private interests, the tenant’s and the landlord’s. The government is not trying to terminate a benefit or privilege but rather is seeking to make a limited factual finding that will determine the respective rights of each party. The tenants in this case are sympathetic plaintiffs who certainly have a substantial interest in retaining their apartments. But the interests of the landlords, who own the property and seek to recover the apartment for their own or their family’s personal use, cannot be denigrated. See Lindsey v. Normet, 405 U.S. 56, 72-74, 92 S.Ct. 862, 873-874, 31 L.Ed.2d 36 (1972). Indeed, by providing that a landlord can evict a tenant under these circumstances, the legislature has weighed the interests at stake and struck what it perceived to be the appropriate balance. The court should not attempt to disturb the scale, which appears to be reasonably well-balanced, and the interests of the landlord and the tenant in these proceedings should be viewed as comparable.

The issue that must be determined by the rent examiner is whether the landlord, “in good faith,” seeks to recover the apartment for his own use or for the use of his immediate family. Plaintiffs contend that the conferences deny due process in the following ways: ex parte evidence may be accepted and cross-examination denied, the parties are not allowed to see the examiner’s recommended decision, and no transcript of the proceeding is made available to the parties or to the official who makes the ultimate eviction decision. I do not think, however, that the additional safeguards sought by the plaintiffs would so enhance the accuracy of the final determination as to significantly reduce the risk of an erroneous deprivation. Plaintiffs argue that the Keeler case bears out their contentions but I find that it actually supports the opposite view. Plaintiffs complain that vital evidence in the Keeler case — an affidavit executed by the landlord’s relative, a birth certificate establishing the family relationship, and a rent agency inspector’s report — were submitted without notice to the tenant and without providing the tenant with an opportunity to cross-examine witnesses. Because the landlord was requested by the examiner to provide the first two documents, plaintiffs claim that the landlord, in contrast to the tenants, was specifically advised of what evidence he needed to make out his ease. Yet the fact that the examiner requested these documents and an inspection report, even though the tenants never challenged the validity of the landlord’s claim, indicates that the examiner conducted a thorough and independent inquiry. The tenants raised no factual issues regarding the substance of the landlord’s application; they did not contend that the apartment was sought for a non-relative or that the proposed occupant was not truly in need. The examiner, however, sought to verify these claims through documentary evidence to satisfy himself of the landlord’s good faith. It is difficult to imagine what could have been gained by cross-examination or submission on notice in light of the narrow and easily verifiable factual inquiry made by the examiner.

This view is equally applicable to the other individual cases involved in this ac*1052tion. The record reveals that the documents submitted in other cases were generally doctors’ statements or title papers that essentially spoke for themselves. The “witnesses,” who were usually the parties, the proposed occupant, and an occasional attorney, were questioned by the examiner in an informal setting. Even accepting plaintiffs’ contention that cross-examination is denied, I cannot agree that it is constitutionally required in these proceedings. “[Differences 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.’ ” Mathews v. Eldridge, supra, 424 U.S. at 348, 96 S.Ct. at 909, quoting FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 143, 60 S.Ct. 437, 441, 84 L.Ed. 656 (1940). A full scale evidentiary hearing is neither a mandatory, nor even the most effective, method of decisionmaking under all circumstances. Id. Rather, the procedures should be tailored to fit “the capacities and circumstances of those who are to be heard.” Goldberg v. Kelly, 397 U.S. 254, 268-69, 90 S.Ct. 1011, 1020-1021, 25 L.Ed.2d 287 (1970).

The dissent argues that “[s]ince good faith is a central issue, and often will require an assessment of a landlord’s credibility, a decision on the basis of a paper record would seem to be ‘a particularly inappropriate way’ to decide whether or not a certificate should issue. Califano v. Yamasaki, 442 U.S. 682, 696-97 [99 S.Ct. 2545, 2555-2556, 61 L.Ed.2d 176] (1979).” As noted in the dissent, however, the Commissioner does not rely on the provision in the rent control law that states that a proceeding may be limited “to the filing of affidavits, or other written evidence and the filing of briefs.” Title Y, § Y51-8.0. And while the plaintiffs point out that even informal conferences are not mandatory, it appears that some kind of conference was held with each of the tenant-plaintiffs in this action. Therefore, the issue, in my view, is not whether a purely paper record is sufficient but whether “good faith” can be accurately determined through the procedures followed in these cases. Upon reviewing the record, I conclude that these application and conference procedures, along with the availability of an administrative and judicial appeal, provide ample opportunity to assess the validity of the landlord’s claim and his credibility.

In Califano v. Yamasaki, supra, the Supreme Court examined the procedures followed by the Secretary of the Department of Health, Education and Welfare in seeking to recover erroneous overpayments made to beneficiaries of certain insurance programs. After a recipient was notified that an overpayment had been made, he could request a reconsideration of that determination pursuant to section 204(a) of the Social Security Act. Or, the recipient could request that recoupment be waived in accordance with section 204(b) which provides that there shall be no recovery from “any person who is without fault if such adjustment would defeat the purpose of [the Act] or would be against equity and good conscience.” The Supreme Court held that no oral hearing was required for. a reconsideration request under section 204(a) because it involved “relatively straightforward matters of computation for which written review is ordinarily an adequate means to correct prior mistakes.” 442 U.S. at 696, 99 S.Ct. at 2555. The Court also held, however, that written review was inadequate to make a waiver of determination under section 204(b). According to the Court, fault “depends on an evaluation of ‘all pertinent circumstances’ including the recipients’ ‘intelligence . .. and physical and mental condition’ as well as his good faith. 20 CFR § 404.507 (1978).” Id. at 697, 99 S.Ct. at 2555. In the Court’s view, these factors cannot be “evaluated absent personal contact between the recipient and the person who decides his case” because “evaluating fault . . . usually requires an assessment of the recipient’s credibility, and written submissions are a particularly inappropriate way to distinguish a genuine hard luck story from a fabricated tall tale.” Id.

Two main distinctions exist between the action at bar and the Yamasaki case upon which the plaintiffs and the dissent rely. *1053First, although the “good faith” determination involved here is not merely a matter of computation, it is more susceptible to objective proof than the question of fault. The rent control law does not expressly define the meaning of “good faith.” New York courts, however, have elaborated upon the issue. The New York cases establish that “[t]he administrative inquiry into good faith should be restricted to a search for the landlord’s honest intention to gain possession for his own use.” Berlinrut v. Leventhal, 43 A.D.2d 522, 525, 349 N.Y.S.2d 82, 83 (1st Dep’t 1973); see Rosenbluth v. Finkelstein, 300 N.Y. 402, 405, 91 N.E.2d 581 (1949); McCabe v. Gabel, 22 A.D.2d 939, 255 N.Y.S.2d 993 (2d Dep’t 1964). The landlord’s good faith cannot be impeached on the ground that he could have occupied another apartment in the building that was not subject to the rent control law. Berlin-rut v. Leventhal, supra; McCabe v. Gabel, supra. According to the record in this ease, the tenant does not usually dispute the specifies of the landlord’s claim that he or a member of his family intends to occupy the apartment. Furthermore, facts regarding ownership of the building or the family relationship are generally supported by independent documentary evidence. The conferences, therefore, do not appear to be a vehicle for weighing one party’s word against another’s and the landlord’s credibility is not as critical an issue as it might first appear. Furthermore, the landlord’s claims can always be subject to more stringent scrutiny by the examiner or the Commissioner if specific factual allegations are questioned or challenged. In contrast to the fault inquiry involved in Yamasaki, the rent examiner is not really attempting to distinguish between an actual “hard luck story” and a “fabricated tall tale.”

The second way in which this case differs from Yamasaki is that decisions were not rendered against these tenant-plaintiffs without any personal contact by the examiner who made the initial recommendation. In contrast to Yamasaki, some type of conference was held in each of these cases and the eviction decision did not rest solely on a paper record. Conferences were also held for some of the protest proceedings initiated by tenant-plaintiffs. The Yamasaki Court approved of a procedure, instituted by the Secretary after the lawsuit was filed, whereby recipients were afforded “a short personal conference with an impartial employee of the Social Security Administration at which time the recipient present[ed] testimony and evidence and cross-examine[d] witnesses, and the administrative employee question[ed] the recipient.” Id. The Court did not suggest, however, that cross-examination was necessary or required. Indeed, the issue-specific and flexible analysis employed by the Court confirms that every due process case should be carefully examined in light of the factual determination to be made, the evidentiary factors that must be reviewed, the characteristics of the parties, and the role played by the decision-maker. Consideration of these factors leads me to conclude that more formal procedures are not necessary in the case at bar to accurately assess the landlord’s “good faith.”

The plaintiffs claim that they were denied due process because they were not apprised of the examiner’s recommended decision which must be approved and adopted by his superiors before an order granting eviction would be issued. I find this claim to be without merit. The government has no duty to inform parties of every internal recommendation when ample opportunities for appeal are provided. Furthermore, the additional burdens created by such a procedure outweigh any incidental benefit that might result on the tenants’ behalf. The examiners fill out conference reports which include (a summary of the evidence, a progress sheet, and their recommendations. It does not appear that a formal “decision” that could be distributed to the parties is ever drafted by the examiner and such an extra step does not appear warranted. Furthermore, if the parties were able to comment on the recommendation before it was adopted or rejected, they would, in effect, be given an additional chance to take an appeal. The rent control law provides that a protest can be filed after an *1054order is issued and judicial review is also available. The tenant, therefore, is already provided with one administrative and one judicial appeal. The extra step requested would constitute an unnecessary burden.

The plaintiffs also contend that due process requires that the conferences be recorded stenographically or by tape. According to the plaintiffs, a complete record or transcript is necessary so that the ultimate decision-maker who is not present at the conference can know precisely what occurred. I disagree with this contention. As recently stated by the Second Circuit in Yaretsky v. Blum, 629 F.2d 817, 822 (2d Cir. 1980), “neither the Constitution nor New York law requires the administrative decision-maker in an appeal from a hearing officer recommendation to read (or listen to) the entire transcript (or tape recording) of the hearing before issuing an administratively final decision, whether favorable or adverse to the claimant.” In Yaretsky, the Second Circuit distinguished and narrowly interpreted the two cases relied upon by the plaintiffs, Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288 (1936) (“Morgan I ”) and Ostrowski v. City of New York, 601 F.2d 629 (2d Cir. 1979), to the point where plaintiffs’ reliance is misplaced. 629 F.2d at 823-25 & nn. 4, 6. And while plaintiffs quote the statement in Morgan I that “[t]he one who decides must hear,” 298 U.S. at 481, 56 S.Ct. at 912. Judge Friendly has observed that “the life of this aspect of Morgan I was extremely brief. In Morgan IV [United States v. Morgan, 313 U.S. 409, 61 S.Ct. 999, 85 L.Ed. 1429 (1941)] Mr. Justice Frankfurter, writing for a Court unanimous on this point, took back most or all of what the first decision had given.” National Nutritional Foods Assoc. v. FDA, 491 F.2d 1141, 1144 (2d Cir. 1974). Indeed, the Second Circuit has endorsed the view propounded by Professor Davis that:

Since the only purpose of sifting and analyzing of evidence by subordinates is to save the time of the deciding officers, this necessarily means that deciding officers may “consider and appraise” the evidence prepared by reading a summary or analysis prepared by subordinates. The Supreme Court thus did not require in the First Morgan case that deciding officers must read all the evidence or even

that they must directly read any of it. 2 Davis, Administrative Law § 11.03 at 44-45 (1958) (footnotes omitted), quoted in Yaretsky v. Blum, supra, 629 F.2d at 823.

The plaintiffs’ argument that a conference transcript is constitutionally required is, therefore, unfounded. Furthermore, any party that wishes to memorialize the conference can provide his own recording equipment. See Knowlson v. Joy, 78 Civ. 2685 (S.D.N.Y. Feb. 23, 1979) (not officially reported). It is true that this option is not likely to occur to an unrepresented tenant or may not be financially feasible. Yet it would be unduly burdensome to force the City to assume this chore when a transcript is neither constitutionally required nor likely to be relied upon in most cases. Except in rare cases, it does not appear that the interests of the parties or the decision-maker will be promoted by imposing this additional administrative and fiscal burden.

Conclusion

While summary judgment should not be granted freely in actions raising important constitutional claims, the district court properly awarded judgment to the Commissioner in this case. No genuine factual disputes exist with respect to the notice provisions and the notice provided is not constitutionally inadequate. And although some unanswered questions may remain regarding the conference procedures, these issues are not material in that they fail to rise to constitutional proportions. Even viewing all unresolved issues in the light most favorable to the plaintiffs’ claims, I find that the procedures conform to due process requirements. A full blown evidentiary hearing is not constitutionally required and the tenants are given an opportunity to be heard, to present evidence, and to appeal from an adverse decision. Furthermore, the examiner who renders the initial recommendation serves as an impartial arbiter who conducts a thorough and independent inquiry into a narrow factual *1055issue. While “good faith” connotes credibility, this determination rests in large part on verifiable documentary evidence whose probative value can be measured in the absence of cross-examination.

The procedures followed here constitute an attempt to give all the parties a chance to air their views without creating a cumbersome and formal process leading to a trial-type hearing. Cf. Matter of Colton v. Berman, 21 N.Y.2d 322, 333, 287 N.Y.S.2d 647, 654-55, 234 N.E.2d 679, 684-685 (1967) (no evidentiary or quasi-judicial hearing required for valuation determination for “the avowed purpose of successive rent control statutes has always been to avoid protracted valuation proceedings ... in the light of the millions of rental units to be regulated and the burden such proceedings would place on landlords and tenants of small or low-rent properties.”). Of course, if the tenant remains dissatisfied with the administrative determination or believes that an error was committed, an Article 78 proceeding may be instituted in New York Supreme Court. For those individual eases where an abuse of discretion occurs, an appeal to the state court is the appropriate remedy as opposed to the restructuring of administrative procedures by a federal court. See Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969), cert. denied, 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 75 (1970), while this latter avenue may have to be pursued in cases where it is the only viable recourse, the action at bar does not fall within that category. Accordingly, I vote to affirm the decision below.