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September 17, 1980

Julianna McKENNA and Alice Brown, Plaintiffs,
PEEKSKILL HOUSING AUTHORITY, M. George Habeeb, Individually and in his capacity as a consultant to the Peekskill Housing Authority, Cyrus A. Bleakley, Individually and his capacity as Chairman of the Members of the Authority, and John E. Daly, Individually and in his capacity as Housing Manager of the Authority, Defendants

The opinion of the court was delivered by: TENNEY

Plaintiffs Julianna McKenna and Alice Brown are tenants in a state-funded housing project operated by the Peekskill Housing Authority (the "Authority"). The defendants in this suit are the Authority; M. George Habeeb, former Housing Manager of the Authority, individually and in his capacity as consultant to the Authority; Cyrus A. Bleakley, individually and in his capacity as Chairman of the Authority; and John E. Daly, individually and in his capacity as current Housing Manager of the Authority. The plaintiffs are challenging the Authority's visitors rule ("Rule 5") which requires tenants to obtain prior approval for overnight guests and to register their visitors' arrivals and departures with the project's management office. This Rule, they argue, unconstitutionally infringes upon their rights of privacy and free association. Plaintiffs have moved for summary judgment, seeking a declaratory judgment that Rule 5 is unconstitutional, a permanent injunction against its enforcement, and damages for personal injuries. The plaintiffs have raised important questions of constitutional law, but the Court is constrained to deny the plaintiffs' motion for summary judgment and to grant summary judgment in favor of the defendants on both the privacy and associational claims.


 The Court need not dwell on the case's background which has already been described in a prior Opinion denying class action certification. (S.D.N.Y.1979) 83 F.R.D. 600. Rule 5 of the Authority's "Rules and Regulations for Tenants" provides as follows:


No person is permitted to occupy the premises except those duly registered in the Management Office and those listed on the dwelling application.
At times you may desire overnight or weekend visits of friends or relatives. This matter should be discussed with the Management. No reasonable requests will be refused; however, you must register your visitor in the Management Office Register and show therein time of his or her arrival and departure. Overnight guests who cannot be reported to the office because of emergency or late arrival must be reported the next business day. Failure to comply with the above may subject the tenant to eviction proceedings.

 Every tenant is provided with a copy of the Rules, for which he or she must provide a signed receipt, see Plaintiffs' Appendix to Motion for Summary Judgment ("Plaintiffs' Appendix") at A-6, and tenants are bound to obey the Rules as part of the rental agreement, id. at A-5. According to the Authority, however, no tenant has ever been evicted for noncompliance with Rule 5.

 As described in the Court's earlier Opinion, 83 F.R.D. at 601-02, both plaintiffs were at various times contacted by defendant Habeeb acting in his former capacity as Housing Manager. He complained of facts which, if true, would constitute violations of Rule 5, and he reminded them that the Authority can seek eviction as a method of enforcing the Rule. The plaintiffs allege that the Rule's existence and Mr. Habeeb's contacts have caused fear, anxiety, embarrassment, and a chilling effect on their constitutional rights in preventing them from relating freely with their friends and relatives.


 Summary Judgment

 Federal Rule of Civil Procedure ("Rule") 56 provides that summary judgment may be granted when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In this Circuit, "the "fundamental maxim' remains that on a motion for summary judgment the court cannot try issues of fact; it can only determine whether there are issues to be tried." Heyman v. Commerce and Indus. Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975); Morse v. Swank, 459 F. Supp. 660, 664 (S.D.N.Y.1978). "On a motion for summary judgment ... the inferences drawn from the facts before the court must be viewed in the light most favorable to the party opposing the motion." Fournier v. Canadian Pac. R. R., 512 F.2d 317, 318 (2d Cir. 1975). "If, when so viewed, reasonable men might reach different conclusions, the motion should be denied and the case tried on its merits." Empire Elec. Co. v. United States, 311 F.2d 175, 180 (2d Cir. 1962). Although "(constitutional) and other questions of a large public import should not be decided on an inadequate factual basis," 6 Moore's Federal Practice P 56.17(10), at 56-772 (2d ed. 1976), "summary judgment may be rendered ... where the record is adequate for the constitutional question presented and there is no genuine issue of material fact." Id. at 56-772 to 776. 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 addition, even though Rule 56 does not address whether summary judgment may be granted in favor of a non-moving party, "(t)he great weight of authority ... dispenses with the formality of a cross-motion." 6 Moore's, supra, P 56.12, at 56-332; Morrissey v. Curran, 423 F.2d 393 (2d Cir. 1970); Petroleo Brasileiro, S.A., Petrobras v. Ameropan Oil Corp., 372 F. Supp. 503 (S.D.N.Y.1974). The one concern in granting summary judgment to the opposing party is that the movant be given an adequate opportunity to "adduce factual material which raises a substantial question of the veracity or completeness" of the other side's case. Beal v. Lindsay, supra, 468 F.2d at 291.

 The facts in this case regarding Rule 5's potential interference with the plaintiffs' constitutional rights and their actual reactions to it are not in dispute. At most, a trial would focus on whether the Authority's Housing Manager telephoned the plaintiffs in enforcing the Rule, and if he did, what transpired. But determining these facts would not throw any new light on the legal issues raised by this case. It has been well established that the Authority does warn tenants about violating Rule 5 and that tenants are aware of the Rule when planning their affairs. Substantiating the exact extent to which the plaintiffs actually changed their behavior will not affect the Court's resolution of the constitutional questions properly posed by this suit. As the issues are now framed, they can be dealt with summarily. Moreover, both sides have had an adequate opportunity to present factual material. "(T)here is nothing whatever to indicate that any party was at all prejudiced." Morrissey v. Curran, supra, 423 F.2d at 399.

 First Amendment Claims

 Plaintiffs argue that Rule 5 violates the First Amendment in several ways: (1) by chilling their exercise of the right to associate freely; (2) by subjecting their associations to prior restraints and to vague discretionary standards of review; (3) by imposing an unconstitutional condition on their continued occupancy in publicly supported housing; and (4) by failing to meet the standard for justifiably infringing on constitutional rights because the Rule "does not even serve a rational purpose, no less a compelling purpose." Plaintiffs' Memorandum in Support of Motion for Summary Judgment ("Plaintiffs' Memorandum") at 29. None of these claims is borne out, however. To the extent that the Rule has altered their behavior, either their reactions ...

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