25-762 Levin, Vodka Properties LLC v. City of Buffalo et al.
1 In the 2 United States Court of Appeals 3 For the Second Circuit 4 ________ 5 6 AUGUST TERM, 2025 7 8 ARGUED: FEBRUARY 2, 2026 9 DECIDED: JUNE 18, 2026 10 11 Docket No. 25-762 12 ________ 13 14 MAXIM LEVIN, VODKA PROPERTIES LLC, 15 Plaintiffs-Appellants, 16 17 v. 18 19 CITY OF BUFFALO, BYRON W. BROWN, Individually and In His 20 Capacity as the Mayor, JAMES COMERFORD, JR., Individually and In 21 His Capacity as the Commissioner of the Department of Permit & 22 Inspection Services, LOU PETRUCCI, Individually and In His Capacity 23 as the Deputy Commissioner of the Department of Permit & 24 Inspection Services, TRACY KRUG, Individually and In His Capacity 25 as an Inspector for the City of Buffalo, KEVIN COYNE, Individually 26 and In His Capacity as an Inspector for the City of Buffalo, 27 Defendants-Cross-Defendants-Appellees, 28 29 EMPIRE DISMANTLEMENT CO., 30 Defendant-Cross-Claimant-Appellee. 31 ________ 32 33 Appeal from the United States District Court 34 for the Western District of New York. 35 ________ 25-762
1 Before: WALKER, PARKER, AND BIANCO, Circuit Judges. 2 ________
3 Plaintiffs-Appellants (“Plaintiffs”), Maxim Levin and Vodka 4 Properties LLC, brought this action against the City of Buffalo, certain 5 City employees, and a private demolition company following the 6 2019 emergency demolition of a residential building Plaintiffs owned 7 in Buffalo. The parties dispute whether (1) illegal drug activity on the 8 property, which culminated in a late August overdose death on it 9 where a needle was later found and (2) the building’s vacant, 10 abandoned, and structurally compromised state were sufficiently 11 established at the time to justify the City’s decision to order an 12 emergency demolition under city law.
13 On appeal, Plaintiffs challenge the district court’s grant of 14 summary judgment on four of their Section 1983 constitutional claims 15 and two additional claims under New York state law. Plaintiffs also 16 challenge the district court’s dismissal of their Section 1983 17 constitutional claims on qualified immunity grounds against 18 individual employees and officials of the City; dismissal of their 19 Section 1983 constitutional claims against a private demolition 20 company; and dismissal of their claims against the City of Buffalo for 21 lack of municipal liability.
22 For the reasons explained below, with respect to the procedural 23 due process, unlawful taking, and unreasonable seizure claims, we 24 conclude that summary judgment was unwarranted because there are 25 questions of material fact as to whether the conditions of the property 26 justified invoking the City’s emergency demolition authority, which 27 is a central issue underlying the resolution of each of those 28 constitutional claims. In addition, because of the uncontroverted 29 evidence demonstrating that Commissioner James Comerford, Jr., 30 was the City’s final policymaker with respect to the emergency 31 demolition decision, the district court erred in granting summary 32 judgment on the municipal liability claim due to a failure to show an 33 official policy or custom. Moreover, given the disputed factual issues 34 regarding whether the circumstances were sufficient to support an
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1 emergency demolition, the district court also erred in granting 2 summary judgment to the Commissioner on the ground of qualified 3 immunity with respect to the procedural due process, unlawful 4 taking, and unreasonable seizure claims. Finally, we affirm the 5 district court’s grant of summary judgment in all other respects.
6 Accordingly, we AFFIRM in part, VACATE in part, and REMAND 7 Plaintiffs’ remaining claims to the district court for further 8 proceedings consistent with this opinion.
9 ________
10 R. ANTHONY RUPP III (Chad A. Davenport and 11 Paul D. Jager, on the brief), Rupp Pfalzgraf LLC, 12 Buffalo, NY, for Appellants.
13 ROBERT E. QUINN, City of Buffalo, Buffalo, NY, for 14 Appellees. 15 ________
16 PER CURIAM:
17 Plaintiffs-Appellants (“Plaintiffs”), Maxim Levin and Vodka 18 Properties LLC, brought this action following the 2019 emergency 19 demolition of a residential building they owned in Buffalo, New York 20 (the “Property”), by the City of Buffalo (the “City”). The Defendants 21 are set forth in the caption. The parties dispute as to whether (1) 22 illegal drug activity on the property, which culminated in a late 23 August overdose death on it where a needle was later found and (2) 24 the building’s vacant, abandoned, and structurally compromised 25 state were sufficiently established at the time to justify the City’s 26 decision to order an emergency demolition under city law.
27 Plaintiffs initially brought fourteen causes of action—(1) ten 28 42 U.S.C. § 1983 (“Section 1983”) constitutional claims against the 29 City, City Defendants, and Empire Dismantlement Company 30 (“Empire,” the private demolition company) and (2) four New York
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1 common law claims against Empire. On July 13, 2023, a magistrate 2 judge (Leslie G. Foschio, M.J.) issued a Report and Recommendation 3 on Plaintiffs’ fourteen claims. The magistrate judge recommended, in 4 relevant part, denying Plaintiffs’ summary judgment motion, 5 granting Empire’s motion for summary judgment, and granting in 6 part and denying in part the City Defendants’ motion for summary 7 judgment.
8 In particular, the magistrate judge recommended granting 9 Empire’s motion for summary judgment as to Plaintiffs’ Section 1983 10 constitutional claims after finding a “lack of state action by Empire” 11 and, accordingly, determining that Empire was a private actor not 12 susceptible to Section 1983 liability. Special App’x at 38. The 13 magistrate judge separately recommended denying Plaintiffs’ and 14 City Defendants’ motions for summary judgment as to Plaintiffs’ 15 procedural due process, unlawful taking, and unreasonable seizure 16 claims. As to those claims, the magistrate judge identified disputed 17 facts regarding notice to the owner and the condition of the building, 18 which the magistrate judge found could call into question the City’s 19 decision to order its emergency demolition, and therefore precluded 20 summary judgment on those claims. See, e.g., Special App’x at 50–52. 21 The magistrate judge recommended denying the City Defendants’ 22 assertion of qualified immunity because of these questions of material 23 fact. Ultimately, the magistrate judge recommended that Plaintiffs’ 24 due process, unlawful taking, and unreasonable seizure claims 25 proceed against the individual City Defendants and the City.
26 On February 29, 2024, the district court (John L. Sinatra, Jr., J.) 27 accepted the magistrate judge’s recommendation in part but 28 sustained objections in part in two relevant respects. First, the district 29 court dismissed Plaintiffs’ procedural due process claim after 30 determining there was no genuine dispute as to notice. 1 Second, the
1 We note here, and discuss further below, that in granting summary judgment on Plaintiffs’ procedural due process claim, the district court did not address whether the condition of the building necessitated an emergency demolition, as the magistrate judge had. 4 25-762
1 district court held, contrary to the magistrate judge’s 2 recommendation, that the individual City Defendants (Brown, 3 Comerford, Petrucci, Krug, and Coyne) were entitled to summary 4 judgment on qualified immunity grounds because they acted 5 reasonably. The district court ordered that this action proceed only 6 against the City of Buffalo on Plaintiff’s unlawful taking claim and 7 reserved decision on Plaintiffs’ unreasonable seizure claim.
8 In a subsequent Decision and Order, dated April 30, 2024, the 9 district court ordered that it would allow Plaintiffs’ unreasonable 10 seizure claim to proceed against the City of Buffalo because 11 “questions of material fact” existed, specifically “whether City 12 Defendants’ invocation of the Commissioner’s emergency 13 condemnation and demolition authority to demolish the Building 14 were warranted based on the condition of the Building and 15 Property . . . .” Special App’x at 109. As a result, Plaintiffs’ unlawful 16 taking and unreasonable seizure claims against the City were 17 permitted to proceed.
18 On March 4, 2025, the district court received supplemental 19 briefing and reconsidered whether Plaintiffs’ unlawful taking and 20 unreasonable seizure claims could proceed against the City, given the 21 magistrate judge’s earlier, separate determination that Plaintiffs had 22 not sufficiently alleged municipal liability. See id. at 117 (concluding 23 that “Plaintiffs ha[d] adduced no evidence regarding the asserted 24 demolitions amounting to an official policy or custom” (quoting the 25 magistrate judge’s Report and Recommendation)). After also 26 determining that Plaintiffs failed to establish any viable municipal 27 (Monell) liability claim against the City, the district court dismissed 28 Plaintiffs’ constitutional unlawful taking and unreasonable seizure 29 claims in their entirety. See id. at 115–17, 120 (adopting the magistrate 30 judge’s finding).
Instead, the district court only discussed whether there was a genuine dispute of material fact as to whether Plaintiffs received adequate notice. 5 25-762
1 On appeal, Plaintiffs challenge the district court’s grant of 2 summary judgment against them on four of their Section 1983 claims 3 and two additional claims under New York state law. Plaintiffs also 4 challenge the district court’s dismissal of their claims on qualified 5 immunity grounds against the individual City Defendants; dismissal 6 of their Section 1983 claims against Empire; and the ultimate dismissal 7 of their claims against the City of Buffalo for lack of municipal 8 liability.
9 For the reasons explained below, with respect to the procedural 10 due process, unlawful taking, and unreasonable seizure claims, we 11 conclude that summary judgment was unwarranted because there are 12 questions of material fact as to whether the conditions of the property 13 justified invoking the City’s emergency demolition authority, which 14 is a central issue underlying the resolution of each of those 15 constitutional claims. In addition, because of the uncontroverted 16 evidence demonstrating that Commissioner James Comerford, Jr., 17 was the City’s final policymaker with respect to the emergency 18 demolition decision, the district court erred in granting summary 19 judgment on the municipal liability claim due to a failure to show an 20 official policy or custom. Moreover, given the disputed factual issues 21 regarding whether the circumstances were sufficient to support an 22 emergency demolition, the district court also erred in granting 23 summary judgment to the Commissioner on the ground of qualified 24 immunity with respect to the procedural due process, unlawful 25 taking, and unreasonable seizure claims. Finally, we affirm the 26 district court’s grant of summary judgment in all other respects.
27 Accordingly, we AFFIRM in part, VACATE in part, and REMAND 28 Plaintiffs’ remaining claims to the district court for further 29 proceedings consistent with this opinion.
30 DISCUSSION
31 We review the district court’s grant of summary judgment and 32 decision to dismiss de novo. Miller v. Wolpoff & Abramson, L.L.P., 321 33 F.3d 292, 300 (2d Cir. 2003). Summary judgment is appropriate when,
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1 viewing the evidence in the light most favorable to the non-moving 2 party, "there is no genuine issue as to any material fact and the 3 moving party is entitled to judgment as a matter of law.” See Nabisco, 4 Inc. v. Warner-Lambert Co., 220 F.3d 43, 45 (2d Cir. 2000); Fed. R. Civ. 5 P. 56(a).
6 I. Section 1983 Claims
7 A. Fourteenth Amendment Procedural Due Process Claim
8 Plaintiffs argue that they were deprived of procedural due 9 process in connection with the demolition of their building. A review 10 of a procedural due process claim involves a “two-step inquiry” in 11 which we must determine “(1) whether [the plaintiff] possessed a 12 liberty or property interest and, if so, (2) what process [] was due 13 before [the plaintiff] could be deprived of that interest.” Ciambrello v. 14 Cnty. of Nassau, 292 F.3d 307, 313 (2d Cir. 2002). While pre- 15 deprivation hearings are normally required before an individual’s 16 property may be taken by the government, the Supreme Court has 17 held that in emergency situations a city may satisfy procedural due 18 process by making available “some meaningful means by which to 19 assess the propriety of [its] action at some time after the initial 20 taking.” Parratt v. Taylor, 451 U.S. 527, 539 (1981), overruled on other 21 grounds, Daniels v. Williams, 474 U.S. 327 (1986); see also WWBITV, Inc. 22 v. Vill. of Rouses Point, 589 F.3d 46, 50 (2d Cir. 2009) (“Where there is 23 an emergency requiring quick action and where meaningful pre- 24 deprivation process would be impractical, the government is relieved 25 of its usual obligation to provide a hearing, as long as there is an 26 adequate procedure in place to assess the propriety of the deprivation 27 afterwards.”).
28 There is no dispute that Plaintiffs had a protected interest in the 29 property that they owned. The parties disagree, however, over 30 whether procedural due process was satisfied. The parties dispute 31 whether there was a genuine factual dispute as to the condition of the 32 Property, both as to drug use on it and as to its physical state, that 33 justified an emergency demolition without a pre-deprivation hearing,
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1 and whether Plaintiffs received constitutionally adequate notice of 2 the remedies available to them.
3 The City Defendants had broad authority to declare an 4 emergency demolition by virtue of the City Code and Charter, and in 5 particular, where a building was “deem[ed] to be an immediate threat 6 to the health, welfare and safety of the public.” Supplemental App’x 7 at 117; see id. at 119–20 (similar). As our circuit precedent recognizes, 8 the Supreme Court directs us to accord deference to the decision to 9 invoke the emergency procedure and not to engage in a hindsight 10 analysis of whether the totality of the impairment to the property 11 actually created an immediate danger to the public. See Catanzaro v. 12 Weiden, 188 F.3d 56, 62 (2d Cir. 1999) (citing Hodel v. Va. Surface Mining 13 & Reclamation Ass’n, 452 U.S. 264, 302–03 (1981)). Under that 14 deferential standard, “the due process guarantee is offended only 15 when an emergency procedure is invoked in an abusive and arbitrary 16 manner; therefore, there is no constitutional violation unless the 17 decision to invoke the emergency procedure amounts to an abuse of 18 the constitutionally afforded discretion.” Id. In Catanzaro, we 19 emphasized that we were not “suggest[ing] that the government may 20 simply avoid affording due process to citizens by arbitrarily invoking 21 emergency procedures”—rather, “where there is competent evidence 22 allowing the official to reasonably believe that an emergency does in 23 fact exist, or that affording pre[-]deprivation process would be 24 otherwise impractical, the discretionary invocation of an emergency 25 procedure results in a constitutional violation only where such 26 invocation is arbitrary or amounts to an abuse of discretion.” Id. at 27 63.
28 Defendants argue that their authority to order an emergency 29 demolition in this case derived from two conditions on the vacant 30 property that created a safety concern for the neighborhood. The 31 conditions were (1) illegal drug activity, which culminated in a late 32 August overdose death on the Property where a needle was later 33 found and (2) the building’s “vacant, abandoned, and [] structural[ly] 34 compromise[d]” state. Appellees’ Br. at 6. We conclude that there are
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1 disputed issues of material fact with respect to each part of this 2 justification that preclude summary judgment on this critical question 3 of whether the City abused its discretion in determining that an 4 emergency demolition was warranted.
5 First, while our independent review of the record reveals more 6 evidence of illegal drug activity than just the “one needle” that 7 Plaintiffs indicate, Appellants’ Brief at 41, the question is whether all 8 the evidence concerning illegal drug activity, taken together, 9 presented an “immediate threat to the health, welfare and safety of the 10 public[,]” Supplemental App’x at 117 (emphasis added). In terms of 11 evidence supporting the presence of illegal drug activity constituting 12 an immediate threat, between March 2015 and July 2019, the City of 13 Buffalo received at least seven complaints related to vagrants and 14 drug use on the Property. In August 2019, the City received a police 15 complaint about a drug overdose death on the Property. Shortly after 16 this report, investigators found a used needle on the Property. But, 17 in dispute of Defendants’ argument about the immediacy of the 18 threat, we note that approximately one month elapsed between the 19 drug overdose death and the demolition of the Property in late 20 September 2019. In further dispute of whether there was an 21 immediate threat, as the Report and Recommendation noted, “there 22 is no evidence in the record that after the overdose of a single drug 23 user at the Property, there remained any public health risk based on 24 drug use at the Property[.]” Special App’x at 50. More broadly, the 25 record is devoid of evidence regarding the City’s consideration of 26 alternative measures short of demolition that could address any 27 ongoing public safety risk created by continuing drug use on the 28 Property pending a scheduled hearing, which was only three weeks 29 away at the time of the demolition. Indeed, the Commissioner 30 testified that, if it had been brought to his attention that there was a 31 court proceeding or court hearing that was scheduled for a specific 32 property, he “would [have] wait[ed] for the hearing” as opposed to 33 moving forward with an emergency demolition. App’x at 245. In 34 short, drawing all inferences in Plaintiffs’ favor, we conclude that 35 disputed factual issues preclude summary judgment for Defendants
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1 as to whether the City’s determination that drug activity at the 2 Property warranted an emergency demolition ultimately 3 “amount[ed] to an abuse of discretion.” Catanzaro, 188 F.3d at 63.
4 The record, admittedly sparse, also presents conflicting 5 evidence about whether the building was in imminent danger of 6 collapse. Therefore, we also find that the structural integrity of the 7 building was sufficiently disputed to preclude granting summary 8 judgment as to the second part of the City’s justification for ordering 9 an emergency demolition.
10 Thus, summary judgment was inappropriate. The existence of an 11 emergency is a “material fact . . . vigorously contested by the parties” 12 because both justifications relied upon by the City remain in dispute. 13 Burtnieks v. City of New York, 716 F.2d 982, 988 (2d Cir. 1983).
14 Plaintiffs also challenge the efficacy of the notice they received 15 from the City in advance of the demolition. We hold that the notice 16 was sufficient. “[D]ue process requires only that a state take steps 17 reasonably calculated to provide actual notice, not that the notice 18 actually reach [the property owner] . . . before the government may 19 take his property.” Oneida Indian Nation of N.Y. v. Madison Cnty., 665 20 F.3d 408, 429 (2d Cir. 2011) (citation modified).
21 Defendants took reasonable steps to provide notice to Plaintiffs 22 prior to the building’s demolition. Defendants posted at the building 23 notice of the pending demolition and sent this notice via certified and 24 regular mail to the owners. The City’s efforts at notice distinguish 25 this case from those in which we found pre-deprivation notice 26 insufficient. See, e.g., WWBITV, 589 F.3d at 48 (plaintiffs learned of the 27 demolition from a friend); Burtnieks, 716 F.2d at 984 (plaintiff learned 28 about the demolition through her plumber). We therefore find no 29 dispute of material fact as to the notice provided to Plaintiffs.
30 While the district court did address the question of notice, it did 31 not address whether such notice, paired with the conditions on the 32 Property, were such that Plaintiffs’ procedural due process rights
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1 were protected absent a pre-deprivation hearing. Without knowing 2 whether the cited conditions of the Property warranted an emergency 3 demolition, an issue that must be resolved at trial given the disputed 4 factual issues discussed above, we are unable to conclude that “the 5 government [was] relieved of its usual obligation to provide a 6 hearing” and that the procedure afforded to Plaintiffs was adequate. 7 WWBITV, Inc., 589 F.3d at 50; see also Hellenic Am. Neighborhood Action 8 Comm. v. City of New York, 101 F.3d 877, 880 (2d Cir. 1996) (“When the 9 deprivation occurs in the more structured environment of established 10 state procedures, rather than random acts, the availability of 11 postdeprivation procedures will not, ipso facto, satisfy due process.”).
12 As a result, we vacate the district court’s grant of summary 13 judgment on Plaintiffs’ procedural due process claim and remand it 14 to the district court for further proceedings. 2
15 B. Fourteenth Amendment Substantive Due Process
16 We agree with the district court’s grant of summary judgment 17 for Defendants, and related denial of summary judgment for 18 Plaintiffs, on Plaintiffs’ substantive due process claim because it is 19 derivative of Plaintiffs’ more explicit constitutional claims. The 20 Supreme Court has held that, in the Section 1983 context, “[w]here a 21 particular Amendment ‘provides an explicit textual source of 22 constitutional protection’ against a particular sort of government 23 behavior, ‘that Amendment, not the more generalized notion of 24 substantive due process, must be the guide for analyzing these 25 claims.’” Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality) (citation 26 modified). The rule announced in Oliver applies here because the
2 We similarly conclude that the disputed issues of material fact on the procedural due process claim with respect to the Commissioner’s invocation of the emergency demolition authority also preclude summary judgment with respect to the unlawful taking claim under the Fifth Amendment, as well as the unreasonable seizure claim under the Fourth Amendment. 11 25-762
1 crux of Plaintiffs’ substantive due process claim is found in explicit 2 textual sources: the Fourth and Fifth Amendments.
3 As a result, we affirm the district court’s grant of summary 4 judgment on Plaintiffs’ substantive due process claim.
5 C. Plaintiffs’ Remaining Section 1983 Claims and Monell 6 Liability
7 Apart from the questions of material fact precluding summary 8 judgment on Plaintiffs’ Fifth and Fourth Amendment claims, the 9 district court granted summary judgment to the City and dismissed 10 the case after determining that Plaintiffs failed to produce evidence to 11 support a claim of municipal liability under Monell. See Monell v. 12 Dep’t of Soc. Servs., 436 U.S. 658 (1978). The district court erred in 13 doing so.
14 To establish municipal liability under Monell, a plaintiff “must 15 first prove the existence of a municipal policy or custom” that caused 16 his injuries and then “must establish a causal connection . . . between 17 the policy and the deprivation of his constitutional rights.” Vippolis v. 18 Vill. of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985), cert. denied, 480 U.S. 19 916 (1987). A municipality can face liability “where that 20 organization’s . . . policies or customs that it has sanctioned [] led to 21 an independent constitutional violation.” Segal v. City of New York, 22 459 F.3d 207, 219 (2d Cir. 2006); Monell, 436 U.S. at 694 (involving a 23 policy that was “the moving force of the constitutional violation”).
24 Indeed, a single decision by a designated policymaker may be 25 sufficient to establish the existence of municipal policy under Monell. 26 See Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986) (holding that 27 “municipal liability under § 1983 attaches where . . . a deliberate 28 choice to follow a course of action is made from among various 29 alternatives by the official or officials responsible for establishing final 30 policy with respect to the subject matter in question”); see also 31 Gronowski v. Spencer, 424 F.3d 285, 296 (2d Cir. 2005). “Where a city 32 official ‘has final authority over significant matters involving the
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1 exercise of discretion,’ his choices represent government policy.” 2 Gronowski, 424 F.3d at 296 (quoting Rookard v. Health & Hosps. Corp., 3 710 F.2d 41, 45 (2d Cir. 1983)).
4 Plaintiffs here established that Commissioner Comerford was a 5 policymaker who had final, discretionary authority to order 6 emergency demolitions in the City of Buffalo, a “significant matter” 7 at the heart of Plaintiffs’ various constitutional deprivation claims. Id. 8 Plaintiffs’ Complaint and Objection to the magistrate judge’s Report 9 and Recommendation allege facts that sufficiently establish the 10 Commissioner as the “final policymaker” who invoked the 11 emergency demolition procedure upon Plaintiffs’ Property. See 12 App’x at 18, 47–48 (noting the Commissioner was “responsible for 13 setting, reviewing, and enforcing the policies and regulations of the 14 City of Buffalo”); 3 id. at 929–30 (describing the Commissioner as “a 15 policymaker or [with] the power to make official policy in regard to 16 demolition, and that a Constitutional violation occurred directly or 17 indirectly from his command to survive a motion for summary 18 judgment[]”).
19 Further, “[a]n allegation of policy-making authority . . . 20 requires proof of the official’s scope of employment and his role 21 within the municipal or corporate organization.” Rookard, 710 F.2d at 22 45. The Commissioner’s authority in this realm is clearly prescribed 23 under the City of Buffalo’s Code and Charter, which both parties 24 reference throughout the record. Supplemental App’x at 117, 119–20 25 (City of Buffalo Code and Charter). Defendants’ deposition 26 testimony also supports the fact that the Commissioner was granted 27 discretionary authority to make these emergency demolition 28 decisions. See, e.g., App’x at 210–11; id. at 132–33. This was sufficient
3With regard to the demolition of the Property, the Complaint states that the Commissioner was contacted by an inspector requesting emergency demolition, that he signed the Notice of Condemnation with Defendant Petrucci, and that he was authorized by the Buffalo Common Council to enter a contract for the demolition of the Property. 13 25-762
1 proof to support Plaintiffs’ claim that the Commissioner was a final 2 policymaker, thereby subjecting the City of Buffalo to Monell liability 3 for his decision to order an emergency demolition of the Property in 4 this case. As final policymaker, the Commissioner’s decision to order 5 an emergency demolition of Plaintiffs’ Property directly led to its 6 destruction and, therefore, a possible constitutional violation in the 7 form of property seizure and taking.
8 We therefore vacate the district court’s grant of summary 9 judgment to Defendants on Plaintiffs’ municipal liability claim. 10 Similarly, Plaintiffs’ Fifth Amendment unlawful taking and Fourth 11 Amendment unreasonable seizure claims against the City are 12 remanded to the district court for further consideration alongside 13 Plaintiffs’ procedural due process claim.
14 D. Liability for Plaintiffs’ Remaining Section 1983 Claims
15 The parties dispute which parties, if any, may be held liable for 16 Plaintiffs’ remaining Section 1983 claims. We agree that Empire was 17 properly excluded from Section 1983 liability because Empire is a 18 private actor, not a state actor, and its actions in this case did not 19 amount to state action. With the exception of the Commissioner, we 20 also agree with the district court’s dismissal of all claims against the 21 individual City Defendants on the grounds of qualified immunity. 22 Thus, the case may proceed only against the City, for the reasons 23 described above, and the Commissioner, for the reasons elaborated 24 on below, with respect to Plaintiffs’ remaining Section 1983 claims.
25 a. Empire
26 Section 1983 permits civil liability against persons who, acting 27 under color of state law, deprive an individual of rights, privileges, or 28 immunities secured by the Constitution and laws of the United States. 29 42 U.S.C. § 1983; see also Burtnieks, 716 F.2d at 986. For the individual 30 City Defendants and the City, with regard to the constitutional claims, 31 “there is no question that the first prerequisite is met” and that the 32 “conduct complained of [was] committed by a person acting under
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1 color of state law[.]” Burtnieks, 716 F.2d at 986. The district court 2 properly dismissed Plaintiffs’ Section 1983 claims against Empire, 3 however, because Empire acted as a private—not state—actor, and 4 thus was not liable under Section 1983.
5 Empire was a private company and therefore presumptively 6 not a state actor. A private entity, however, is not precluded from 7 being held liable as a state actor. “[A] ‘state action’ occurs where the 8 challenged action of a private party is ‘fairly attributable’ to the state.” 9 Logan v. Bennington Coll. Corp., 72 F.3d 1017, 1027 (2d Cir. 1995) (citing 10 Lugar v. Edmonson Oil Co., 457 U.S. 922, 937 (1982)). This may occur 11 when the private entity “is a state official, . . . [and] has acted together 12 with or has obtained significant aid from state officials, or because 13 [their] conduct is otherwise chargeable to the State.” Id. 14 “Characterizing a private party as a ‘state actor’ is a fact-specific 15 inquiry,” and we consider factors such as “the public function of the 16 party’s conduct, whether the private party acted under state 17 compulsion, the nexus between the party’s conduct and the state, and 18 whether the party’s conduct was jointly undertaken with the state.” 19 Id. (citing Lugar, 457 U.S. at 939).
20 We agree with the magistrate judge that “Empire’s 21 involvement was limited to the physical demolition of the [b]uilding 22 on the Property on September [30], 2019, pursuant to a contract with 23 the City that was awarded based on Empire’s submission of the 24 winning, i.e., lowest, bid for demolition.” Special App’x at 38. Empire 25 played no role in deciding whether the demolition should take place. 26 Given Empire’s limited role in executing the challenged demolition, 27 we agree with the district court’s grant of summary judgment in favor 28 of Empire on all of Plaintiffs’ Section 1983 claims.
29 b. Individual City Defendants
30 “In a § 1983 action, it is well-settled that qualified immunity 31 shields a defendant from personal liability for damages so long as his 32 conduct did not violate clearly established statutory or constitutional 33 rights of which a reasonable person would have known.” Kaluczky v.
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1 City of White Plains, 57 F.3d 202, 207 (2d Cir. 1995) (citation modified). 2 As discussed supra, at the time of the demolition, it was clearly 3 established that, absent an emergency, procedural due process under 4 the Fourteenth Amendment generally required a pre-deprivation 5 hearing before a property right could be terminated. See Hodel, 452 6 U.S. at 298–300; Parratt, 451 U.S. at 539–40. Because Plaintiffs’ Section 7 1983 claims are based on “clearly established” constitutional rights, 8 qualified immunity protects the individual City Defendants from 9 having to defend against Plaintiffs’ claims only so long as “it was 10 objectively reasonable for [them] to believe that [their] acts did not 11 violate those rights.” Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d Cir. 12 1991).
13 With respect to the Commissioner, we conclude that he is not 14 entitled to qualified immunity at the summary judgment stage 15 because there are disputed factual issues regarding whether the 16 circumstances were sufficient to constitute an emergency. These 17 factual disputes also preclude a determination as to whether that 18 decision by the Commissioner was objectively reasonable for 19 purposes of qualified immunity.
20 However, we agree with the district court that Plaintiffs failed 21 to develop an issue of material fact as to the objective reasonableness 22 of the remaining individual City Defendants given the varying roles 23 these different individuals played in gathering the relevant 24 information pertaining to the Property as compared to the 25 Commissioner’s unique role in making the ultimate decision. In other 26 words, the other individual City Defendants merely observed or 27 inspected the Property at various points in time and reported their 28 findings to the Commissioner, who then made the decision, based 29 upon all the information that had been gathered over time, that the 30 circumstances were sufficient to constitute an emergency that 31 warranted demolition without a hearing. Under these circumstances, 32 with respect the remaining individual City Defendants, it was 33 objectively reasonable for them to believe that their limited 34 participation did not violate Plaintiffs’ constitutional rights.
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1 Kaminsky, 929 F.2d at 925. Because we find their actions to be 2 objectively reasonable under those circumstances, we affirm the 3 district court’s decision to grant qualified immunity to the individual 4 City Defendants, other than the Commissioner, and to dismiss the 5 claims against them.
6 II. New York Common Law Claims
7 Finally, Plaintiffs reassert their New York common law claims 8 against Empire for negligence and trespass. We agree with the district 9 court’s grant of summary judgment for Empire on these claims.
10 Plaintiffs’ negligence claim fails because Plaintiffs “cannot 11 establish that Empire breached any duty owed to Plaintiffs as 12 required for a negligence claim[.]” App’x at 904. Plaintiffs’ trespass 13 claim also fails because Empire was “‘licensed or privileged’ to enter 14 private premises when [Empire] obtained the consent of the owner or 15 another whose relationship to the premises gives [them] authority to 16 issue such consent.” People v. Graves, 555 N.E.2d 268, 269 (N.Y. 1990). 17 Empire may avoid liability for trespass here because the City, whom 18 Empire contracted with, gave Empire permission to enter Plaintiffs’ 19 land.
20 For these reasons, we affirm the district court’s grant of 21 summary judgment to Empire on Plaintiffs’ negligence and trespass 22 claims.
23 * * *
24 We have considered the remaining arguments and find them 25 without merit. For the foregoing reasons, the judgment of the district 26 court is:
27 AFFIRMED in part as to:
28 • The district court’s grant of summary judgment in favor of 29 Empire for Plaintiffs’ Section 1983 and state law claims;
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1 • The district court’s dismissal of all claims against the 2 individual City Defendants, with the exception of the 3 Commissioner, on qualified immunity grounds; 4 • The district court’s grant of summary judgment on Plaintiffs’ 5 substantive due process claim;
6 VACATED in part as to:
7 • The district court’s grant of summary judgment in favor of 8 the City, and dismissal of the case in its entirety, after finding 9 no Monell liability; 10 • The district court’s grant of summary judgment in favor of 11 the Commissioner on qualified immunity grounds; 12 • The district court’s grant of summary judgment in favor of 13 the City and Commissioner on Plaintiffs’ procedural due 14 process, unlawful taking, and unreasonable seizure claims; 15 and
16 REMANDED to the district court for further proceedings consistent 17 with this opinion.