Santander Consumer USA, Inc. v. Port Authority of New York and New Jersey

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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SANTANDER CONSUMER USA, INC.,

Plaintiff, MEMORANDUM & ORDER

20-CV-1997 (MKB)

v.

PORT AUTHORITY OF NEW YORK AND NEW

JERSEY,

Defendant.

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VW CREDIT, INC.,

Plaintiff,

20-CV-1998 (MKB)

v.

PORT AUTHORITY OF NEW YORK AND NEW

JERSEY,

Defendant.

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MARGO K. BRODIE, United States District Judge:

Plaintiffs Santander Consumer USA, Inc. (“Santander”) and VW Credit, Inc. (“VW

Credit”) commenced related actions on May 4, 2020 against Defendant Port Authority of New

York and New Jersey (the “Port Authority”) pursuant to 42 U.S.C. §§ 1983 and 1988, alleging

unreasonable seizure and deprivation of property without due process in violation of the Fourth

and Fourteenth Amendments and the New York State Constitution.1 (Santander Compl.; VW

1 Plaintiffs commenced separate actions on May 4, 2020 asserting the same claims. (See

Santander Compl., Santander Consumer USA, Inc. v. Port Auth. of N.Y. and N.J., No.

Credit Compl.) Specifically, Plaintiffs allege that Defendant deprived them of their right to a

2015 Nissan Altima, 2014 Kia Sorrento, 2019 Chevrolet Impala, and 2016 Audi A7 (collectively

the “Vehicles”), without due process, by impounding the Vehicles after they remained too long

in airport parking lots without payment. (Santander Compl. ¶¶ 8–10, 23, 29, 35, 44–57; VW

Credit Compl. ¶¶ 8, 21, 30–43.) Plaintiffs seek damages and injunctive relief. (Santander

Compl. ¶¶ 58–66; VW Credit Compl. ¶¶ 44–52.)

Plaintiffs move for summary judgment,2 and Defendant opposes the motions.3 For the

reasons discussed below, the Court denies Plaintiffs’ motions in part and grants them in part.

I. Background

The following facts are undisputed unless otherwise noted.

a. Factual background

The Port Authority is a bi-state agency that facilitates transportation at LaGuardia Airport

(“LGA”) and John F. Kennedy Airport (“JFK”) and has its own police force, the Port Authority

Police Department (the “PAPD”). (Pls.’ Stmt. of Material Facts Pursuant to Local R. 56.1 (“Pls.’

20-CV-1997, Docket Entry No. 3; VW Credit Compl., VW Credit, Inc. v. The Port Auth. of N.Y.

and N.J., No. 20-CV-1998, Docket Entry No. 3.)

2 Santander and VW Credit filed identical joint motions for summary judgment on each

of their dockets. (See Santander’s Mot. for Summ. J., Santander Consumer USA, Inc. v. Port

Auth. of N.Y. and N.J., No. 20-CV-1997, Docket Entry No. 24; VW Credit’s Mot. for Summ. J.,

VW Credit, Inc. v. The Port Auth. of N.Y. and N.J., No. 20-CV-1998, Docket Entry No. 23.) The

Court will refer to the briefing filed in Santander Consumer USA, Inc. v. Port Auth. of N.Y. and

N.J., No. 20-CV-1997. (See Santander’s Mot. for Summ. J., Santander Consumer USA, Inc. v.

Port Auth. of N.Y. and N.J., No. 20-CV-1997 ( “Pls.’ Mot.”); Santander Mem. of Law in Supp. of

Pls.’ Mot., Santander Consumer USA, Inc. v. Port Auth. of N.Y. and N.J., No. 20-CV-1997,

Docket Entry No. 24-1 (“Pls.’ Mem.”).); Decl. of Nicholas A. Duston in Supp. of Pls.’ Mot.

(“Duston Decl.”), Santander Consumer USA, Inc. v. Port Auth. of N.Y. and N.J., No. 20-CV-

1997, Docket Entry No. 24-3.

3 (See Def.’s Opp’n to Pls.’ Mot. (“Def.’s Opp’n”), Docket Entry No. 25.)

56.1”) ¶¶ 15–16, Docket Entry No. 24-2.) JFK and LGA have multiple parking lots and garages

that are operated by ABM Parking Services (“ABM”). (Decl. of James Kostaris dated Sept. 27,

2021 (“Kostaris Decl.”) ¶ 5, annexed to Def.’s Opp’n as Ex. D, Docket Entry No. 25-5; Decl. of

Frank Negron dated Sept. 29, 2021 (“Negron Decl.”) ¶ 5, annexed to Def.’s Opp’n as Ex. E,

Docket Entry No. 25-6.) According to Defendant’s policy, permission to park in the parking lots

and garages is limited to thirty days, (Kostaris Decl. ¶¶ 5–6), and vehicles left in the parking

garages and lots over thirty days are deemed abandoned, (see Def.’s Counter to Pls.’ 56.1

(“Def.’s 56.1”) ¶ 21, Docket Entry No. 25-10; Kostaris Decl. ¶ 6; Negron Decl. ¶ 6). When a

vehicle is abandoned, the PAPD takes possession of the vehicle and sends written notification to

the registered owner and lienholder.4 (Pls.’ 56.1 ¶ 19; Kostaris Decl. ¶ 12.) Notice of the time

limit for parking is posted in the lots and on tickets that a driver obtains when they enter the lots.

(Kostaris Decl. ¶ 6; Negron Decl. ¶ 6.) Abandoned vehicles remain in the PAPD’s possession

until the vehicle is claimed by the registered owner, lienholder or their designees. (Pls.’ 56.1 ¶

19.) Defendant will not release a vehicle until the fees for towing and storing the vehicle are

paid in full. (Id. at ¶ 20; General Order Vehicle Impound and Inventory (“Vehicle Impound

Order”) PA 320, annexed to Pls.’ Mot. as Ex. 3, Docket Entry No. 24-6.) Defendant’s policy

indicates that hearings are available under certain circumstances — such as when a vehicle is

seized as arrest evidence — but does not provide information for hearings in other

circumstances. (Pls.’ 56.1 ¶ 22; see generally Vehicle Impound Order PA 317–19.)

4 A vehicle may also be “deemed to be an abandoned vehicle if left unattended . . . for

more than ninety-six hours on property of another if left without permission of the owner.” N.Y.

Veh. & Traf. L. § 1224(1)(d); (Pls.’ 56.1 ¶ 23). Defendant notifies the owner and lienholder by

regular certified mail of (1) the cost imposed for towing and storage; (2) instructions for

recovering the vehicle; and (3) notice of impoundment. (See General Order Vehicle Impound

and Inventory (“Vehicle Impound Order”) PA 317–19, annexed to Pls.’ Mot. as Ex. 3, Docket

Entry No. 24-6.)

i. Impoundment and notice

Each of the Vehicles was purchased through a retail installment contract and Plaintiffs

financed the purchase of the Vehicles. (Pls.’ 56.1 ¶¶ 3, 5, 7, 13.)

1. The 2014 Kia Sorento

On or around August 23, 2016, a non-party car dealership sold the 2014 Kia Sorento to a

non-party customer; Santander financed the purchase of the vehicle and was listed as a lienholder

of the vehicle. (Id. at ¶¶ 4–5.) On April 30, 2018, the PAPD requested the authorized tow

operator at JFK to remove the 2014 Kia Sorento from the “Green Parking Lot” to the PAPD lot

after it had remained in the Green Parking Lot for seventy-two days. (Pls.’ 56.1 ¶¶ 27–28;

Kostaris Decl. ¶¶ 7, 9–10.) On May 6, 2018, Santander received notice of the impoundment as

required by New York Vehicle and Traffic Law section 1224 (“section 1224”). See N.Y. Veh. &

Traf. L. § 1224 (3)(b); (Pls.’ 56.1 ¶ 35; Def.’s 56.1 ¶ 35; Kia Sorrento Impound Notice Letter

dated May 3, 2018 (“Sorrento Notice”) at PA 6, annexed to Kostaris Decl. as Ex. 2, Docket

Entry No. 25-5).

2. The 2015 Nissan Altima

On or around May 26, 2016, a non-party car dealership sold the 2015 Nissan Altima to a

non-party customer; Santander financed the purchase of the vehicle and was listed as a lienholder

of the vehicle. (Pls.’ 56.1 ¶¶ 2–3.) On June 11, 2018, the PAPD requested the authorized tow

operator at LGA to remove the 2015 Nissan Altima from “Parking Lot 4” to the PAPD lot after it

had remained in Parking Lot 4 for eighty-three days. (Id. at ¶¶ 29–30; Negron Decl. ¶¶ 7, 10.)

On June 15, 2018, Santander received notice of the impoundment as required by section 1224.

See N.Y. Veh. & Traf. L. § 1224 (3)(b); (Pls.’ 56.1 ¶ 36; Def.’s 56.1 ¶ 36; Nissan Altima

Impound Notice Letter dated June 11, 2018 (“Altima Notice”) at PA 19, annexed to Negron

Decl. as Ex. 1, Docket Entry No. 25-6.)

3. The 2016 Audi A7

On or around July 4, 2019, a non-party car dealership sold the 2016 Audi A7 to a

non-party customer; VW Credit financed the purchase of the vehicle and was listed as a

lienholder of the vehicle. (Pls.’ 56.1 ¶¶ 12–13.) On August 27, 2019, the PAPD requested the

authorized tow operator at LGA to remove the 2016 Audi from the “East Parking Garage” to the

PAPD lot after it remained in East Parking Garage for forty-five days. (Id. at ¶¶ 31–32; Negron

Decl. ¶¶ 8, 11.) On September 3, 2019, VW Credit received notice of the impoundment as

required by section 1224. See N.Y. Veh. & Traf. L. § 1224 (3)(b); (Pls.’ 56.1 ¶ 37; Def.’s 56.1 ¶

37; Audi A7 Impound Notice Letter dated Aug. 27, 2018 (“A7 Notice”) at PA 3, annexed to

Negron Decl. as Ex. 2, Docket Entry No. 25-6).

4. The 2019 Chevrolet Impala

On or around November 29, 2018, a non-party car dealership sold the 2019 Chevrolet

Impala to a non-party customer; Santander financed the purchase of the vehicle and was listed as

a lienholder of the vehicle. (Pls.’ 56.1 ¶¶ 6–8.) On September 6, 2019, the PAPD requested the

authorized tow operator at JFK to remove the 2019 Chevrolet Impala from the “Yellow Parking

Lot” to the PAPD lot after it had remained in the Yellow Parking Lot for 133 days. (Pls.’ 56.1 ¶¶

33–34; Kostaris Decl. ¶¶ 8, 11.) On September 10, 2019, Santander received notice of the

impoundment as required by section 1224. See N.Y. Veh. & Traf. L. § 1224 (3)(b); (Pls.’ 56.1 ¶

38; Def.’s 56.1 ¶ 38; Chevrolet Impala Notice Letter dated Sept. 6, 2019 (“Impala Notice”) at PA

46, annexed to Kostaris Decl. as Ex. 2, Docket Entry No. 25-5).

All of the notices issued stated:

The abandoned vehicle, described above, was removed by

[Defendant] after being left unattended at [JFK or LGA]. Under

[s]ection 1224 of the New York State Vehicle and Traffic Law,

[Defendant] will acquire ownership of this vehicle on [a date ten

days from date of notice] unless it is claimed by the owner or

lienholder. The person claiming this vehicle is responsible for the

cost of its removal and storage. If the vehicle is unclaimed, your

lien will be terminated. You may claim this vehicle by appearing at

[Defendant’s] Police Auto Crime Unit.

(Pls.’ 56.1 ¶ 39; Def.’s 56.1 ¶ 39.)

ii. Release

Defendant refused to release possession of the Vehicles until Plaintiffs paid past-due

parking fees, towing, and storage charges relating to each of the Vehicles. (Pls.’ 56.1 ¶ 40.) On

May 16, 2018, ten days after it received the Sorento Notice, Santander’s agent paid $3,481.09 to

release the Kia Sorento.5 (Id. at ¶¶ 44–47; Def.’s 56.1 ¶¶ 44, 46.) On June 20, 2018, Santander’s

agent paid $4,412.09 to release the Nissan Altima, five days after it received the Altima Notice.6

(Pls.’ 56.1 ¶¶ 41–43; Def.’s 56.1 ¶¶ 41, 43.) Santander has not regained possession of the

Chevrolet Impala. (Pls.’ 56.1 ¶ 48; Def.’s 56.1 ¶ 48.) Santander claims that as of September 25,

2019, Defendant asserted a $8,796.09 lien on the Chevrolet Impala. (Pls.’ 56.1 ¶ 47.) Defendant

claims it has not asserted a lien or refused to release the Chevrolet Impala. (Def.’s 56.1 ¶ 47.)

VW Credit has not regained possession of the Audi A7. (Pls.’ 56.1 ¶ 51; Def.’s 56.1 ¶ 51.) VW

Credit claims that as of November 7, 2019, Defendant asserted a $7,436.09 lien on the vehicle.

(Pls.’ 56.1 ¶ 50.) Defendant claims it has not asserted a lien or refused to release the Audi A7.

5 Defendant contends that Santander paid $1,836.09 to Defendant for towing and storage

fees in order to obtain the Kia Sorento and paid $1,645.00 to ABM for parking fees. (Def.’s 56.1

¶¶ 46, 53; Kostaris Decl. ¶ 14.)

6 Defendant contends that Santander paid $1,136.09 to Defendant for towing and storage

fees in order to obtain the Nissan Altima and paid $3,276.00 to ABM for parking fees. (Def.’s

56.1 ¶¶ 43, 52; Negron Decl. ¶ 15.)

(Def.’s 56.1 ¶ 50.)

b. Procedural history

Plaintiffs each commenced related actions on May 4, 2020 against Defendant pursuant to

42 U.S.C. §§ 1983 and 1988, alleging deprivation of property without unreasonable seizure and

due process in violation of the Fourth and Fourteenth Amendments and the New York State

Constitution. (See Santander Compl; VW Credit Compl.) Plaintiffs move for summary

judgment arguing that (1) Defendant’s policy of seizing vehicles to collect unpaid and

unadjudicated fees violates the Fourth Amendment because the seizures are unreasonable and not

accompanied by a warrant, (Pls.’ Mem. 8–16); (2) Defendant’s policy for impounding vehicles

without a hearing is unconstitutional and violates the Fourteenth Amendment, (id. at 16–24); and

(3) Defendant’s conduct also violates the New York Constitution, (id. at 26). Plaintiffs also seek

damages and a declaration that Defendant’s “policy and custom of seizing cars which have been

left in [Defendant’s] parking lot and/or garages longer than [thirty] days . . . without affording a

hearing . . . violates the Fourth and Fourteenth Amendment protections against unreasonable

seizures and deprivations of property without due process of law.” (Id. at 27–32.)

Defendant opposes the motions and argues that material disputes preclude the Court from

making a determination that impounding the Vehicles was unreasonable as a matter of law and

that a warrant was not required prior to impounding the Vehicles. (Def.’s Opp’n 6–10.)

Defendant also argues that (1) Plaintiffs have not shown that Defendant’s actions violated

Plaintiffs’ due process rights, (id. at 10–16); (2) Plaintiffs fail to state a claim for municipal

liability under Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978), (id. at 16–18);

and (3) Plaintiffs fail to comply with state statutory jurisdictional requirements, (id. at 18–20).7

II. Discussion

a. Standard of review

Summary judgment is proper only when “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Windward

Bora, LLC v. Wilmington Sav. Fund Soc’y, 982 F.3d 139, 142 (2d Cir. 2020); Wandering Dago,

Inc. v. Destito, 879 F.3d 20, 30 (2d Cir. 2018). The court must “constru[e] the evidence in the

light most favorable to the non-moving party” and “resolve all ambiguities and draw all

permissible factual inferences in favor of the party against whom summary judgment is sought.”

Lenzi v. Systemax, Inc., 944 F.3d 97, 107 (2d Cir. 2019) (first quoting VKK Corp. v. Nat’l

Football League, 244 F.3d 114, 118 (2d Cir. 2001); and then quoting Johnson v. Goord, 445

F.3d 532, 534 (2d Cir. 2006)). The role of the court “is not to resolve disputed questions of fact

but only to determine whether, as to any material issue, a genuine factual dispute exists.” Rogoz

v. City of Hartford, 796 F.3d 236, 245 (2d Cir. 2015) (first quoting Kaytor v. Elec. Boat Corp.,

7 Plaintiffs bring claims under Article 1, Sections 6 and 12 of the New York State

Constitution for unreasonable seizure and lack of due process that are identical to their Fourth

and Fourteenth claims. (Santander Compl. ¶¶ 56–57; VW Credit Compl. ¶¶ 42–43.) However,

Plaintiffs did not address their state constitutional claims in their briefing. (see generally Pls.’

Mem.) Nevertheless, Plaintiffs’ New York State constitutional claims are adequately addressed

through their Fourth and Fourteenth Amendment claims. See Oneida Indian Nation of N.Y. v.

Madison County, 665 F.3d 408, 427 n.13 (2d Cir. 2011) (“New York courts have interpreted the

due process guarantees of the New York Constitution and the United States Constitution to be

coextensive.”); Saheed v. City of New York, No. 17-CV-1813, 2020 WL 1644006, at *17

(S.D.N.Y. Apr. 2, 2020) (dismissing claims under Article 1, Section 12 of the New York State

Constitution for the same reasons as the dismissal of Fourth Amendment claims because “[t]he

search and seizure language of the Fourth Amendment . . . and the language of Article 1, Section

12 of the New York State Constitution . . . is identical, and the two provisions generally confer

similar rights” (quoting Mittelman v. County of Rockland, No. 07-CV-6382, 2013 WL 1248623,

at *30 (S.D.N.Y. Mar. 26, 2013))).

609 F.3d 537, 545 (2d Cir. 2010); and then citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

249–50 (1986)). A genuine issue of fact exists when there is sufficient “evidence on which the

jury could reasonably find for the [nonmoving party].” Anderson, 477 U.S. at 252. The “mere

existence of a scintilla of evidence” is not sufficient to defeat summary judgment. Id. The

court’s function is to decide “whether, after resolving all ambiguities and drawing all inferences

in favor of the nonmoving party, a rational juror could find in favor of that party.” Pinto v.

Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000).

b. Fourth Amendment claim

Plaintiffs argue that Defendant’s impoundment of vehicles it deems to be abandoned is

unreasonable because the “seizure of [the v]ehicles which it determines to be abandoned are not

accompanied by a warrant or valid exception to the [Fourth Amendment’s] warrant

requirement.” (Pls.’ Mem. 12–13.) In support, Plaintiffs claim that they have a constitutionally

protectable interest as lienholders, (id. at 9–10), and “that there is no urgency or concern for the

safety of the public or the [V]ehicles” to justify the warrantless seizure of the [V]ehicles. (Pls.’

Reply in Further Supp. of Pls.’ Mot. (“Pls.’ Reply”) 7, Docket Entry No. 28; Pls.’ Mem. 12–13.)

In addition, Plaintiffs argue that even if Defendant had a valid exception justifying the initial

seizure, Defendant’s continued seizure of the vehicle is unreasonable because Defendant’s

indefinite retention of the Vehicles — unless the owner pays past-due parking fees as well as

towing and storage charges — is a de facto forfeiture. (Pls.’ Mem. 13–15.) Plaintiffs also

contend that a forfeiture action “would trigger a whole host of procedural protections” that

Defendant has not provided. (Id. at 14–15.)

Defendant argues that the impoundment of the Vehicles was reasonable. (Def.’s Opp’n

9.) In support, Defendant asserts that removing vehicles that “(1) by definition . . . were

abandoned under state law” and (2) “freed up [airport parking] spaces so that they could be used

by others coming [i]nto the airport” is consistent with its statutory obligation to ensure the

efficient operation of airports by aiding patron travel and keeping traffic at the airport moving

smoothly. (Id. at 6–8.) In addition, Defendant contends that Plaintiffs are not entitled to

summary judgment because neither the Supreme Court nor the Second Circuit has addressed the

issue of whether, and under what circumstances, the tow and removal of a vehicle deemed

abandoned under section 1224 violates the Fourth Amendment. (Id. at 9–10.)

i. Initial impoundment

The Fourth Amendment protects individuals “against unreasonable searches and

seizures.” U.S. Const. amend. IV; United States v. Weaver, 9 F.4th 129, 138 (2d Cir. 2021);

United States v. Bailey, 743 F.3d 322, 331 (2d Cir. 2014). “A seizure occurs when the

Government interferes in some meaningful way with the individual’s possession of property.”

United States v. Ganias, 755 F.3d 125, 133 (2d Cir. 2014) (citing United States v. Jones, 565

U.S. 400, 407 (2012)), rev’d en banc, 824 F.3d 199 (2d Cir. 2016); see Soldal v. Cook County,

Illinois, 506 U.S. 56, 61–64 (1992) (explaining that a seizure occurs when one’s property

interests are violated). “The rights and benefits of property ownership . . . include not only the

right to actual possession of a thing, but also the right to exclude others from possessing it, . . .

and the right to sell, alienate, waste, or even destroy it.” Almeida v. Holder, 588 F.3d 778, 788

(2d Cir. 2009) (citing Hon. James L. Oakes, “Property Rights” in Constitutional Analysis Today,

56 Wash. L. Rev. 583, 589 (1981)). “Warrantless . . . seizures are ‘per se unreasonable under the

Fourth Amendment — subject only to a few specifically established and well-delineated

exceptions.’” Weaver, 9 F.4th at 138 (quoting Katz v. United States, 389 U.S. 347, 357 (1967)).

“The impoundment of a vehicle implicates rights guaranteed by the Fourth Amendment’s

protection against unreasonable searches and seizures.” Bey v. Dist. of Columbia, No.

17-CV-620, 2018 WL 5777021, at *5 (E.D.N.Y. Nov. 1, 2018) (quoting Miranda v. City of

Cornelius, 429 F.3d 858, 862 (9th Cir. 2005). It “is a seizure within the meaning of the Fourth

Amendment.” Miranda, 429 F.3d at 862; Vasquez v. Yadali, No. 16-CV-895, 2020 WL

1082786, at *7 (S.D.N.Y. Mar. 5, 2020) (quoting Bey, 2018 WL 5777021, at *5); see also United

States v. Coccia, 446 F.3d 233, 237–38 (1st Cir. 2006) (considering a challenge to the towing of

a vehicle as an unreasonable seizure in violation of the Fourth Amendment). However, “[i]n the

interests of public safety and as part of what the [Supreme] Court has called ‘community

caretaking functions,’ automobiles are frequently taken into police custody.” South Dakota v.

Opperman, 428 U.S. 364, 368–69 (1976) (quoting Cady v. Dombrowski, 413 U.S. 433, 441

(1973)); see United States v. Morris, No. 20-CR-100, 2022 WL 1651408, at *4 (W.D.N.Y. Apr.

12, 2022) (“It is well established that police have the authority, despite the absence of a warrant,

to seize and remove from the streets automobiles in the interests of public safety and as part of

their community caretaking functions — an authority that is beyond reasonable challenge.”

(quoting United States v. Lyle, 919 F.3d 716, 728 (2d Cir. 2019))), report and recommendation

adopted, No. 20-CR-100, 2022 WL 1645261 (W.D.N.Y. May 24, 2022); Vasquez, 2020 WL

1082786, at *7 (recognizing that “it is reasonable for police officers to impound the vehicle

under . . . community care functions where, among other things, the vehicle would otherwise . . .

threaten public safety” (quoting United States v. Colon, No. 10-CR-498, 2011 WL 569874, at

*14 (S.D.N.Y. Feb. 8, 2011))). “[W]hether a decision to impound is reasonable under the Fourth

Amendment is based on all the facts and circumstances of a given case.” Lyle, 919 F.3d at 731;

Hawthorne by Hawthorne v. County of Putnam, 492 F. Supp. 3d 281, 297 (S.D.N.Y. 2020).

Under the totality of the circumstances, Defendant’s seizures of Plaintiffs’ vehicles were

reasonable. Defendant “has been empowered to promulgate regulations with respect to its

operations.” HVT, Inc. v. Port Auth. of N.Y. and N.J., No. 15-CV-5867, 2018 WL 3134414, at

*6 (E.D.N.Y. Feb. 15, 2018) (quoting Am. Honda Fin. Corp. v. One 2008 Honda Pilot, 878

N.Y.S.2d 597, 600 (N.Y. Sup. Ct. 2009), report and recommendation adopted, No. 15-CV-586,

2018 WL 1409821 (E.D.N.Y. Mar. 21, 2018)). Making parking convenient and available to

airport patrons is critical to the efficient operation of these garages and lots as that service aids

travel and helps to keep traffic at the airport moving smoothly. See N.Y. Comp. Codes R. &

Regs. tit. 21, § 1262.16; (Def.’s Opp’n 7). Defendant’s policy deems vehicles left in the airports’

parking garages and lots over thirty days to be abandoned and requires abandoned vehicles to be

towed and impounded. See also N.Y. Veh. & Traf. L. § 1224(1)(d) (“A motor vehicle shall be

deemed to be an abandoned vehicle if left unattended . . . for more than ninety-six hours on

property of another if left without permission of the owner.”); Lyle, 919 F.3d at 731 (recognizing

that “the existence of and an officer’s adherence to a standardized criteria may be helpful in

evaluating the reasonableness of an impoundment”); Alloul v. City of New York,

No. 09-CV-7726, 2010 WL 5297215, at *5 (S.D.N.Y. Dec. 21, 2010) (“The [defendant]’s

reasonable belief that the car was abandoned does not make it so. Rather, the [defendant] must

show that the vehicle was abandoned within the meaning of [section] 1224(1).”); (Pls.’ 56.1 ¶ 19;

Def.’s 56.1 ¶ 19; Vehicle Impound Order PA 317–20). Notice of the parking time limit is posted

in the lots and on the tickets that a driver obtains when they enter the lots. (Kostaris Decl. ¶ 6;

Negron Decl. ¶ 6.) Plaintiffs’ vehicles were left unattended at various airport parking garages

and lots for between 45 and 133 days, (Pls.’ 56.1 ¶¶ 27–34; Kostaris Decl. ¶¶ 7–9; Negron Decl.

¶¶ 7–9), and pursuant to Defendant’s policy and regulations, Defendant towed and impounded

Plaintiffs’ vehicles, (Vehicle Impound Order PA 317–20).

Based on the undisputed facts, Defendant’s impoundment of the Vehicles was reasonable

because Defendant determined that the Vehicles were abandoned under both internal policy and

local law, and Defendant removed the Vehicles from the lot to effectuate the efficient operation

of airports. See Opperman, 428 U.S. at 368–69 (describing the authority of police “to seize and

remove from the streets vehicles impeding traffic or threatening public safety and convenience,”

such as vehicles that “violate parking ordinances,” as “beyond challenge”); United States v.

Sanders, 796 F.3d 1241, 1249 (10th Cir. 2015) (“Opperman establishes that if a vehicle is

obstructing or impeding traffic on public property, it can be impounded regardless of whether the

impoundment is guided by standardized procedures.” (citing Opperman, 428 U.S. at 369)); see

also King v. Creed, No. 14-CV-165, 2017 WL 6389708, at *3 (N.D.N.Y. Dec. 13, 2017) (finding

the defendant’s impoundment was a permissible and reasonable exercise of the “community

caretaker function” where the defendant decided to impound the plaintiff’s vehicle pursuant to

department policies governing suspended drivers’ licenses and did not want to leave the

plaintiff’s vehicle unattended for an unknown period of time), appeal dismissed, 2018 WL

7021869 (2d Cir. May 24, 2018); Shibeshi v. City of New York, No. 11-CV-4449, 2011 WL

13176091, at *2 (S.D.N.Y. Sept. 21, 2011) (“The [c]ity’s warrantless seizure of a person’s

vehicle from a public street due to that person’s failure to pay parking ticket fines has been held

not to violate the Fourth Amendment in that it is a reasonable seizure, does not implicate core

privacy concerns requiring a warrant and, of itself, demonstrates probable cause.” (citing Rackley

v. City of New York, 186 F. Supp. 2d 466, 469–74 (S.D.N.Y. 2002))), aff’d, 475 F. App’x 807

(2d Cir. 2012). Thus, Plaintiffs have failed to prove that they are entitled to judgment as a matter

of law against Defendant’s policy and practice of towing and impounding vehicles it deems

abandoned.

ii. Continued impoundment

Moreover, Defendant’s retention of the Vehicles until the owner pays relevant fees is not

a violation of the Fourth Amendment. In a summary order, the Second Circuit recently

concluded that “‘a seizure claim based [solely] on the unlawful retention’ of property that was

lawfully seized [i]s . . . ‘too novel a theory to warrant Fourth Amendment protection.’” Bennett

v. Dutchess County, New York, 832 F. App’x 58, 60 (2d Cir. 2020) (quoting Shaul v. Cherry

Valley-Springfield Cent. Sch. Dist, 363 F.3d 177, 187 (2d Cir. 2004)); Gerte v. Borough of

Naugatuck, No. 19-CV-1511, 2021 WL 1165362, at *5 (D. Conn. Mar. 26, 2021) (“Where an

initial seizure of property was reasonable, the ‘failure to return the items does not, by itself, state

a separate Fourth Amendment claim of unreasonable seizure,’ and improper retention of property

may be addressed as a procedural due process claim.” (quoting Shaul, 363 F.3d at 187)). “Thus,

‘[t]o the extent the Constitution affords . . . any right with respect to a government agency’s

retention of lawfully seized property, it would appear to be procedural due process.’” Santander

Consumer USA, Inc. v. County of Suffolk, No. 20-CV-2656, 2021 WL 4480574, at *12

(E.D.N.Y. Sept. 30, 2021) (quoting Bennett, 832 F. App’x at 60).

Accordingly, the Court denies Plaintiffs’ motions as to their Fourth Amendment claims.8

8 In light of this ruling, the Court orders Plaintiffs to show cause as to why their Fourth

Amendment claims should not be dismissed. See Jian Yang Lin v. Shanghai City Corp, 950 F.3d

46, 49 (2d Cir. 2020) (per curiam) (recognizing that “courts have the discretion to grant summary

judgment sua sponte,” when the nonmoving party “has had a full and fair opportunity to meet the

proposition that there is no genuine issue of material fact to be tried” (first quoting

Schwan-Stabilo Cosmetics GmbH & Co. v. Pacificlink Int’l Corp., 401 F.3d 28, 33 (2d Cir.

2005); and then quoting Ramsey v. Coughlin, 94 F.3d 71, 73–74 (2d Cir. 1996))); see also Fed.

R. Civ. P. 56(f)(1) (“After giving notice and a reasonable time to respond, the court may . . .

grant summary judgment for a nonmovant.”).

c. Procedural due process claim

Plaintiffs argue that they are entitled to summary judgment with respect to their

Fourteenth Amendment due process claim because Defendant’s policy for impounding vehicles

without a hearing is per se unconstitutional. (Pls.’ Reply 3.) In support, Plaintiffs assert that (1)

they have a protectable property interest because they are lienholders of the impounded vehicles;

and (2) the procedures concerning the deprivation of their interest are constitutionally deficient

because there is no opportunity for them to contest the abandonment of the vehicle or the

resulting fees. (Pls.’ Mem. 16–23.) Plaintiffs in effect argue that Defendant does not comply

with due process because it only provides notice of the deprivation — the seizure of the vehicle

— without any ability to contest it. (Pls.’ Reply 5.) In addition, Plaintiffs argue that in order to

comport with due process, Defendant should (1) hold a hearing before seizing allegedly

abandoned vehicles because they do not pose an immediate threat to public safety that require a

special need for prompt action, and (2) hold a hearing before the invocation of fees and charges

to regain possession of the Vehicles. (Pls.’ Mem. 23–25.)

Defendant argues that Plaintiffs are not entitled to summary judgment as to their due

process claim because they were not entitled to a hearing. (Def.’s Opp’n 10–11.) Defendant

contends that it provided adequate due process because after the Vehicles were deemed

abandoned, it provided Plaintiffs with timely and proper notice of the impoundment as required

under section 1224 and applicable regulations and, in addition, the tow and storage fees are

authorized and mandatory under the statute. (Id. at 10–13.) In addition, Defendant argues that

given the nature of impoundments, Article 78 of the New York Civil Practice Law and Rules

provides a constitutionally sufficient opportunity for them to challenge the validity of the

impoundment and resulting fees. (Id. at 13–15.)

i. Plaintiffs have a property interest in the Vehicles that require due

process protections

The Constitution imposes “constraints,” ordinarily in the form of notice and a

pre-deprivation hearing, on “governmental decisions which deprive individuals of ‘liberty’ or

‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth

Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976); Liberian Cmty. Ass’n of Conn. v.

Lamont, 970 F.3d 174, 196 (2d Cir. 2020) (Chin, J., concurring in part and dissenting in part)

(quoting Mathews, 424 U.S. at 335). The Fourteenth Amendment’s Due Process Clause protects

persons against deprivations of life, liberty, or property without due process of law, and “those

who seek to invoke its procedural protection must establish that one of these interests is at

stake.” Victory v. Pataki, 814 F.3d 47, 59 (2d Cir. 2016) (quoting Graziano v. Pataki, 689 F.3d

110, 114 (2d Cir. 2012)). “To plead a violation of procedural due process, a plaintiff must

plausibly allege that [s]he was deprived of property without constitutionally adequate pre- or

post-deprivation process.” Gentleman v. State Univ. of New York Stony Brook et. al,

No. 21-CV-1102, 2022 WL 1447381, at *2 (2d Cir. May 9, 2022) (quoting J.S. v. T’Kach, 714

F.3d 99, 105 (2d Cir. 2013)). “Thus, to plausibly state a claim, ‘a plaintiff must first identify a

property right, second show that the government has deprived h[er] of that right, and third show

that the deprivation was effected without due process.’” Id. (quoting J.S., 714 F.3d at 105)

(internal quotations omitted); see Reyes v. Fischer, 934 F.3d 97, 106 (2d Cir. 2019) (recognizing

that a court first asks, “whether there exists a liberty or property interest of which a person has

been deprived,” and if so, “whether the procedures followed by the State were constitutionally

sufficient” (quoting Swarthout v. Cooke, 562 U.S. 216, 219 (2011))).

As lienholders, Plaintiffs had a valid property interest in the Vehicles. See Ford Motor

Credit Co. v. N.Y.C. Police Dep’t, 503 F.3d 186, 191 (2d Cir. 2007) (“[A] security interest is

indisputably a property interest protected by the Fourteenth Amendment.”); Alexandre v. Cortes,

140 F.3d 406, 411 (2d Cir. 1998) (“[I]t is clear that the substantial sums that [the plaintiff] paid

for the Porsche gave him a protected possessory interest in the car.”). Defendant does not

contest the fact that it required Plaintiffs to pay fees and costs related to the impoundment before

recovering the Vehicles. (Vehicle Impound Order PA 320 (“No vehicle impounded pursuant to

this policy shall be released unless the person claiming the vehicle . . . pay[s] . . . the fee for

towing and storage of the vehicle . . . in full”); see generally Def.’s Opp’n.) The denial of

possession of the Vehicles from Plaintiffs until they pay fees — even as a temporary, nonfinal

deprivation — is a deprivation pursuant to the Fourteenth Amendment. See HVT, Inc., 2018 WL

3134414, at *7 (quoting Fuentes v. Shevin, 407 U.S. 67, 85 (1972));9 see also Fuentes, 407 U.S.

at 85 (“When officials . . . seize one piece of property from a person’s possession and then agree

to return it if he surrenders another, they deprive him of property whether or not he has the funds,

the knowledge, and the time needed to take advantage of the recovery provision.”); Ford Motor

Credit Co., 503 F.3d at 192 (“When the state delays resolution of a claim, the claim holder’s

Fourteenth Amendment rights may be implicated, at least if the claim holder is not in equal part

responsible for the delay. . . . Here, not only is the present value of the claim diminished by the

9 In HVT, Inc. v. Port Authority, the Court affirmed a report and recommendation from

Magistrate Judge Vera M. Scanlon finding that “[Defendant’s] official policy and practice of

seizing and attaching a lien to vehicles [seized incident to an arrest] for towing deprived the

[p]laintiff, [an automotive leasing company and lienholder], of its protected possessory interest

in the vehicle by denying [the p]laintiff possession of the vehicle.” 2018 WL 1409821, at *2.

Consistent with the facts of the case before the Court, Defendant’s policy authorized the towing

and impoundment of the Vehicles, refusal to release the vehicle until all towing and storage fees

were paid, and the acquisition of the vehicle by Defendant if the plaintiff did not claim the

vehicle. Id. at *1–2. The Court also affirmed Judge Scanlon’s finding that “Defendant’s internal

impoundment protocols [were] constitutionally deficient because they failed to provide an

opportunity for a hearing.” Id. (internal citations omitted).

indeterminacy of its eventual realization, but [the plaintiff’s] property interest in the underlying

asset suffers, as the vehicle depreciates over time.”); Krimstock v. Kelly, 306 F.3d 40, 48 (2d Cir.

2002) (holding that “the [c]ity’s continued retention of vehicles after their warrantless seizure by

the police and prior to the ultimate resolution of the forfeiture action in court” was an

“intermediate deprivation, lasting months or sometimes years without any prompt hearing before

a neutral fact-finder” and “constitutionally infirm”); British Int’l Ins. Co. Ltd. v. Seguros La

Republica, S.A., 212 F.3d 138, 141 (2d Cir. 2000) (per curiam) (“[E]ven . . . temporary or partial

impairments to property rights . . . are sufficient to merit due process protection.” (quoting

Connecticut v. Doehr, 501 U.S. 1, 12 (1991))); County of Nassau v. Canavan, 1 N.Y.3d 134, 144

(2003) (“[A] hearing [is] required to ensure that . . . innocent owners are not deprived for months

or years of cars ultimately proved not to be subject to forfeiture.”). Thus the Court must address

whether Defendant’s tow and impoundment system afforded Plaintiffs proper procedural

protections. See Reyes, 934 F.3d at 106.

ii. An Article 78 proceeding does not satisfy due process

“In evaluating what process satisfies the Due Process Clause, ‘the Supreme Court has

distinguished between (a) claims based on established state procedures and (b) claims based on

random, unauthorized acts by state employees.’” Rivera-Powell v. N.Y.C. Bd. of Elections, 470

F.3d 458, 465 (2d Cir. 2006) (quoting Hellenic Am. Neighborhood Action Comm. v. City of New

York, 101 F.3d 877, 880 (2d Cir. 1996)). “When the state conduct in question is random and

unauthorized, the state satisfies procedural due process requirements so long as it provides [a]

meaningful post-deprivation remedy.” Id. (citing Hellenic Am. Neighborhood Action Comm.,

101 F.3d at 880). Under these circumstances, the Second Circuit has “‘held on numerous

occasions that an Article 78 proceeding is a perfectly adequate post-deprivation remedy’ [and]

ha[s] expressed concern only where there is a lengthy deprivation.” Lilakos v. New York City,

808 F. App’x 4, 10 (2d Cir. 2020) (first quoting Hellenic Am. Neighborhood Action Comm., 101

F.3d at 881; and then citing Panzella v. Sposato, 863 F.3d 210, 218 (2d Cir. 2017)); see also

Grillo v. N.Y.C. Transit Auth., 291 F.3d 231, 234 (2d Cir. 2002) (per curiam) (“This court has

‘held on numerous occasions’ that where, as here, a party sues the state and its officials and

employees for the arbitrary and random deprivation of a property or liberty interest, ‘an Article

78 proceeding is a perfectly adequate post[-]deprivation remedy.’” (quoting Hellenic Am.

Neighborhood Action Comm., 101 F.3d at 880–81)).

However, “[w]hen the deprivation occurs in the more structured environment of

established [s]tate procedures, rather than random acts,” the availability of post-deprivation

procedures will not necessarily satisfy due process. Chase Grp. All. LLC v. City of N.Y. Dep’t of

Fin., 620 F.3d 146, 152 n.3 (2d Cir. 2010) (quoting Hellenic Am. Neighborhood Action Comm.,

101 F.3d at 880); see also Reid v. City of New York, 212 F. App’x. 10, 11 (2d Cir. 2006) (“[A]n

adequate post-deprivation remedy is a defense to a [s]ection 1983 due process claim only where

the deprivation is random and unauthorized.” (quoting Butler v. Castro, 896 F.2d 698, 700 (2d

Cir. 1990))); Velez v. Levy, 401 F.3d 75, 91–92 & n.14 (2d Cir. 2005) (stating that

“post-deprivation remedies do not suffice where the government actor in question is a high

ranking official with final authority over significant matters”) (internal citations omitted);

Alexandre, 140 F.3d at 411 (explaining that the availability of a meaningful post-deprivation

remedy will not preclude a section 1983 claim based on a systemic policy). Thus, “[a]lthough an

Article 78 proceeding is a ‘perfectly adequate post[-]deprivation remedy in situations involving

claims of deprivations of liberty or property interests where such deprivations result from

random and arbitrary acts of state employees,’ that is not so when . . . ‘the due process violation

was caused by an established state procedure.’” HVT, Inc., 2018 WL 3134414, at *13 (first

quoting Federico v. Bd. of Educ. of Pub. Sch. of Tarrytowns, 955 F. Supp. 194, 201 (S.D.N.Y.

1997); and then quoting Hellenic Am. Neighborhood Action Comm., 101 F.3d at 881); see Butler,

896 F.2d at 700 (“[T]he existence of independent state relief does not defeat a [s]ection 1983

claim where the deprivation complained of results from the operation of established state

procedures.”).

Moreover, to determine whether available processes are adequate, courts look to

“[f]ederal constitutional standards rather than state law [to] define the requirements of procedural

due process.” Vincent v. Yelich, 718 F.3d 157, 169 (2d Cir. 2013) (quoting Russell v. Coughlin,

910 F.2d 75, 78 n.1 (2d Cir. 1990)); Robison v. Via, 821 F.2d 913, 923 (2d Cir. 1987) (“Federal

constitutional standards rather than state statutes define the requirements of procedural due

process.” (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 540–41 (1985))); Jones v.

Nickens, 961 F. Supp. 2d 475, 493 n.10 (E.D.N.Y. 2013) (same (citations omitted)). “‘[T]he fact

that the [s]tate may have specified its own procedures that it may deem adequate for . . . official

action,’ does not settle what protection the federal due process clause requires.” Russell, 910

F.2d at 78 n.1 (quoting Vitek v. Jones, 445 U.S. 480, 491 (1980)); Broecker v. N.Y.C. Dep’t of

Educ., --- F. Supp. 3d ---, ---, 2022 WL 426113, at *5 (E.D.N.Y. Feb. 11, 2022) (recognizing that

determining what process is due is not defined by state law).

Because Defendant’s conduct derives from established procedure, rather than a random

act, Defendant cannot summarily deprive Plaintiffs of their property interests without an

opportunity for a hearing. Defendant tows and impounds vehicles that have been left in airport

parking lots and garages for over thirty days pursuant to internal and state policy. (See Def.’s

56.1 ¶ 21; Kostaris Decl. ¶ 6; Negron Decl. ¶ 6.) Plaintiffs’ vehicles were parked in airport

parking garages and lots for between 45 and 133 days before Defendant towed and impounded

the Vehicles. (See Pls.’ 56.1 ¶¶ 27–28; Kostaris Decl. ¶¶ 7–9; Negron Decl. ¶¶ 7–9.) The same

day the Vehicles were towed, Defendant sent Plaintiffs letters providing them with (1) notice of

the impoundment pursuant to section 1224, (2) their duty to pay costs imposed for towing and

storage of the vehicle, and (3) instructions for recovering the vehicle. (Vehicle Impound Order

PA 317–18; see Pls.’ 56.1 ¶¶ 35–39; Kostaris Decl. ¶¶ 7–9; Negron Decl. ¶¶ 7–9; Sorento

Notice; Altima Notice, A7 Notice; Impala Notice.) The letters also declared that “[Defendant]

will acquire ownership of this vehicle on [the date ten days after the letter] unless it is claimed by

the owner or lienholder.” (Pls.’ 56.1 ¶ 39; Sorento Notice; Altima Notice, A7 Notice; Impala

Notice.) Plaintiffs’ access to a post-deprivation Article 78 proceeding does not provide a

constitutionally sufficient opportunity for them to challenge the validity of the impoundment and

resulting fees because, as discussed above, Plaintiffs’ deprivations are not the result of random

and arbitrary acts of municipal employees.

Nor does compliance with state abandonment laws absolve Defendant of its

responsibility to provide Plaintiffs with adequate procedural process. Defendant’s impoundment

of the Vehicles was based, in part, on New York Traffic Law’s definition of an abandoned

vehicle and authority to seize such vehicles. See N.Y. Veh. & Traf. L. § 1224(1)(d). However,

even if state law authorizes Defendant to initiate a seizure, the United States Constitution, not

state law, determines what process is due in light of the deprivation. Coles v. Erie County, 629

F. App’x 41, 42 (2d Cir. 2015) (noting that “the question in a [section] 1983 suit claiming

deprivation of a property interest without due process is not whether state procedural law was

correctly followed or applied, but whether the process actually provided satisfies the

requirements imposed by the Constitution”); see also Cleveland Bd. of Educ., 470 U.S. at 541

(“[O]nce it is determined that the Due Process Clause applies, . . . [t]he answer to th[e] question

[of what process is due] is not to be found in the [state] statute.”); Victory, 814 F.3d at 60 & n.9

(determining that the plaintiff’s due process rights in a parole board’s hearing must be

determined under the federal Constitution even though every New York court to have addressed

the issue has determined that the plaintiff is entitled to due process protections).

Therefore, Defendant’s current policy of towing and impounding vehicles it deems

abandoned, denying the release of the Vehicles until the owner pays towing and storage fees, and

acquiring the vehicle if the owner does not claim it in ten days — without a hearing — is

unconstitutional. HVT, Inc., 2018 WL 3134414, at *9 (“Rather, the question is whether [the]

[d]efendant can summarily deprive [the] [p]laintiff of its property without any opportunity for a

hearing. The law is quite clear that it cannot.”).

iii. At minimum, Defendant must provide an opportunity for a hearing

prior to Defendant’s acquisition of the vehicle

Having found that Defendant’s procedure does not provide Plaintiffs with its

constitutionally guaranteed right to an opportunity to be heard, the Court must determine what

process is due.

“The touchstone of due process . . . is ‘the requirement that a person in jeopardy of

serious loss [be given] notice of the case against him and opportunity to meet it.’” Spinelli v.

City of New York, 579 F.3d 160, 169 (2d Cir. 2009) (second alteration in original) (quoting

Mathews, 424 U.S. at 348–49); see also Mathews, 424 U.S. at 333 (“The fundamental

requirement of due process is the opportunity to be heard ‘at a meaningful time and in a

meaningful manner.’” (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965))). “In

determining ‘what process is due,’ we recognize that ‘due process is flexible and calls for such

procedural protections as the particular situation demands.’” Francis v. Fiacco, 942 F.3d 126,

142–43 (2d Cir. 2019) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)); see Logan v.

Zimmerman Brush Co., 455 U.S. 422, 434 (1982) (recognizing that the process due in any given

situation “will depend on appropriate accommodation of the competing interests involved”

(quoting Goss v. Lopez, 419 U.S. 565, 579 (1975))); Nnebe v. Daus, 644 F.3d 147, 158 (2d Cir.

2011) (“[D]ue process is flexible and calls for such procedural protections as the particular

situation demands.” (quoting Brody v. Village of Port Chester, 434 F.3d 121, 134 (2d Cir.

2005))). Ultimately, however, “[t]here is no universal approach to satisfying the requirements of

meaningful notice and opportunity to be heard in a situation such as this.” Krimstock, 306 F.3d

at 69 (citations omitted); see Fuentes, 407 U.S. at 96 (acknowledging that the “nature and form

of [fair hearings] are legitimately open to many potential variations”); DeMichele v. Greenburgh

Cent. Sch. Dist. No. 7, 167 F.3d 784, 791 (2d Cir. 1999) (“There is no rigid formula that

determines the constitutional sufficiency of the process employed in connection with any given

deprivation of a protected interest.”).

Based on the facts presented, a hearing prior to impoundment is impractical and not

required because Defendant would not be able to efficiently maintain access to airports if it was

required to conduct a hearing before removing an allegedly abandoned vehicle from airport

parking lots and garages. See Nnebe, 644 F.3d at 158; see Giglio v. Dunn, 732 F.2d 1133, 1135

(2d Cir. 1984) (“Where a pre-deprivation hearing is impractical and a post-deprivation hearing is

meaningful, the [s]tate satisfies its constitutional obligations by providing the latter.” (citing

Parratt v. Taylor, 451 U.S. 527, 541–42 (1981))); Anderson v. Townsend, No. 21-CV-3569,

2021 WL 5359681, at *5 (S.D.N.Y. Nov. 17, 2021) (“Pre[-]deprivation process is not

constitutionally required in situations requiring ‘quick action by the [s]tate.’” (quoting Catanzaro

v. Weiden, 188 F.3d 56, 61 (2d Cir. 1999)).

However, as described in Krimstock, Ford Motor Credit Co., and HVT, Inc., at minimum,

Defendant must provide an opportunity for a hearing. See Ford Motor Credit Co., 503 F.3d at

189–90; Krimstock, 306 F.3d at 68–69; HVT, Inc., 2018 WL 3134414, at *11 (finding that a

proper remedy requires “that, at a minimum, . . . proper procedures include that the notice must

be sent to . . . record lienholders of the seized vehicles” and “that notice must clearly provide an

opportunity for a hearing; and that the government must be responsible for arranging and

conducting the hearing” (first citing Ford Motor Credit Co., 394 F. Supp. 2d at 611; and then

citing Fuentes, 407 U.S. at 80)); see also Santander Consumer USA, 2021 WL 4480574, at *9

(recognizing that “due process entitles lienholders to notice and an opportunity to be heard prior

to forfeiture of a seized vehicle, [but] due process does not entitle lienholders to notice and an

opportunity to be heard at a Krimstock retention hearing to challenge the [municipality’s]

likelihood of success at a forfeiture proceeding”).

It is up to “the district court, in consultation with the parties, to fashion appropriate

procedural relief consistent with this opinion.” Krimstock, 306 F.3d at 69; see also Fuentes, 407

U.S. at 97 n.33 (“Leeway remains to develop a form of hearing that will minimize unnecessary

cost and delay while preserving the fairness and effectiveness of the hearing[.]”). Therefore, the

Court declines recommending a specific form of prompt post-deprivation hearing, but

recommends that, at a minimum, Defendant’s “notice must clearly provide an opportunity for a

hearing[] and that the government must be responsible for arranging and conducting the

hearing.” HVT, Inc., 2018 WL 3134414, at *11.

Accordingly, within sixty days of this Memorandum and Order, Defendant is required to

submit proposed revised regulations or procedures to the Court for review.10

d. Municipal liability

Defendant argues that it cannot be subject to municipal liability under Monell because

Plaintiffs have failed to show a direct causal link between the Defendant’s handling of the

allegedly abandoned vehicles in the airport parking lots and Plaintiffs’ purported damages. In

support, Defendant asserts that there is no evidence that it misapplied N.Y. Veh. & Traf. L. §

1224 or misused it to seize the Vehicles. (Def.’s Opp’n. 16–18.)

In response, Plaintiffs argue that Defendant is subject to municipal liability because the

Vehicles were impounded and Plaintiffs were subject to fees pursuant to Defendant’s policies.

(Pls.’ Reply 9–10.)

To establish a municipal liability claim, a plaintiff is required to plead and prove three

elements: “(1) an official policy or custom that (2) cause[s] [the plaintiff] to be subjected to (3) a

denial of a constitutional right.” Torcivia v. Suffolk County, New York, 17 F.4th 342, 355 (2d

Cir. 2021) (quoting Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007)); Lucente v.

County of Suffolk, 980 F.3d 284, 297 (2d Cir. 2020) (same); see also Frost v. N.Y.C. Police

Dep’t, 980 F.3d 231, 257 (2d Cir. 2020) (“To establish liability under Monell, a plaintiff must

show that he suffered the denial of a constitutional right that was caused by an official municipal

policy or custom.” (quoting Bellamy v. City of New York, 914 F.3d 727, 756 (2d Cir. 2019))). A

plaintiff can establish an official policy or custom by showing any of the following: (1) a formal

policy officially endorsed by the municipality; (2) actions or decisions made by municipal

10 Plaintiffs have expressly requested not to be involved in the process of rewriting

Defendant’s polices. (Pls.’ Mem. 32.)

officials with decision-making authority; (3) a practice so persistent and widespread that it

constitutes a custom of which policymakers must have been aware; or (4) a failure by

policymakers to properly train or supervise their subordinates, such that the policymakers

exercised “deliberate indifference” to the rights of the plaintiff and others encountering those

subordinates. See O’Kane v. Plainedge Union Free Sch. Dist., 827 F. App’x 141, 142–43 (2d

Cir. 2020) (failure to “take appropriate action to prevent or sanction violations of constitutional

rights” amounting to deliberate indifference (quoting Jones v. Town of East Haven, 691 F.3d 72,

81 (2d Cir. 2012))); Iacovangelo v. Corr. Med. Care, Inc., 624 F. App’x 10, 13–14 (2d Cir.

2015) (formal policy officially endorsed by the municipality); Matusick v. Erie Cnty. Water

Auth., 757 F.3d 31, 62 (2d Cir. 2014) (widespread and persistent practice); Carter v. Inc. Vill. of

Ocean Beach, 759 F.3d 159, 164 (2d Cir. 2014) (failure to train amounting to deliberate

indifference); Jones, 691 F.3d at 81 (policymaking official’s “express” or “tacit” ratification of

low-level employee’s actions).

A plaintiff must show “a direct causal link between a municipal policy or custom and the

alleged constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378, 385 (1989); see City

of St. Louis v. Praprotnik, 485 U.S. 112, 122 (1988) (“Governments should be held responsible

when, and only when, their official policies cause their employees to violate another person’s

constitutional rights.”). “[M]unicipalities have no immunity from damages for liability flowing

from their constitutional violations.” Lore v. City of Syracuse, 670 F.3d 127, 164 (2d Cir. 2012)

(quoting Owen v. City of Independence, 445 U.S. 622, 657 (1980)).

As discussed above, Plaintiffs have shown a direct causal link between Defendant’s

policy of towing and impounding vehicles that they deem abandoned and the deprivation of

Plaintiffs’ property interest in their vehicles without a hearing. The Court therefore denies

Defendant’s motion as to Plaintiffs’ municipal liability claims.

e. Relief

Plaintiffs argue that they are entitled to damages in the amount of (1) $27,878.34,11 plus

an additional $868.92 per month between the date of their brief and the date of recovery of the

Chevrolet Impala for Santander; and (2) $21,405.84,12 plus an additional $891.91 per month

between the date of their brief and the date of recovery of the Audi A7 for VW Credit. (Pls.’

Mem. 27.) Plaintiffs also argue that they are entitled to declaratory relief and request that the

Court issue a declaration of the parties’ respective rights in this case. (Id. at 32.) Plaintiffs “are

expressly not asking that the Court involve [Plaintiffs] in a process of re-writing [Defendant]’s

policies” but “ask the Court to enter judgment finding [Defendant] liable under [section 1983]

for [their] requested damages, and issuing an appropriate declaration.” (Id.)

Other than its Monell assertions, Defendant has not contested Plaintiffs’ method for

calculating damages, the amount of award, or their request for declaratory relief. (See generally

Def.’s Opp’n.)

The Court finds that Plaintiffs are obligated to pay the towing charges of $125.00 for the

Kia Sorento and Nissan Altima because the Court determined that the removal of the Vehicles

11 Santander’s damages request of $27,878.34 includes $4,412.09 to recover the Nissan

Altima, $3,481.09 to recover the Kia Sorento, and $19,985.16 for the Chevrolet Impala, which

consists of monthly payments of $868.92 for a total of twenty-three months – the period of time

through the filing of the briefs that Defendant has retained the Impala. (Pls.’ Mem. 27.)

12 VW Credit’s damages request of $21,405.84 consists of monthly payments of $891.91

for a total of twenty-four months — the period of time through the filing of the briefs that

Defendant has retained the A7. (Pls.’ Mem. 27.)

from the airport parking garages and lots was reasonable.13 See Scofield v. City of Hillsborough,

862 F.2d 759, 765 (9th Cir. 1988) (“The district court found that even if a post-towing hearing

had been held, it would not have relieved [the plaintiff] from the obligation to pay the towing

charges.”). (See Kia Sorento Towing Receipt, annexed to Kostaris Decl. as Ex. 1; Nissan Altima

Towing Receipt at PA 17, 37, annexed to Negron Decl. as Ex. 1.) The Court also finds that

Plaintiffs are obligated to pay the parking fees that accrued while the Vehicles were parked in

LGA and JFK lots and garages. See United States v. Wallace, 476 F. Supp. 2d 1129, 1134–35

(D. Ariz. 2007) (finding that signs advising of fee for entry to federal recreation area provided

proper notice). To the extent Plaintiffs seek reimbursement of parking fees, they cannot recover

such fees from Defendant. (See Kostaris Decl. ¶¶ 5–6.) However, the fees imposed for the

storage of the Vehicles must be voided as Plaintiffs did not have an opportunity to contest the

imposition of fees or the rate of accrual. See HVT, Inc., 2018 WL 3134414, at *15.

The Court defers ruling on Plaintiffs’ motion for damages and directs Plaintiffs to

resubmit a separate application for relief in light of the Court’s Memorandum and Order. The

application should include information for the fees imposed for the storage of the Vehicles and

Defendant will have an opportunity to respond to the motion. The Court also directs the parties

to confer to determine if they can agree as to compensatory damages. With respect to

declaratory relief, the Court, as described above, has determined that Defendant’s current policy

of towing and impounding vehicles it deems abandoned, denying the release of the Vehicles until

the owner pays towing and storage fees, and acquiring the vehicle if the owner does not claim it

in ten days — without a hearing — is unconstitutional. In addition, the Court previously directed

13 The record only contains the towing receipts for the Kia Sorento and Nissan Altima.

To the extent that Defendant can provided receipts for the towing costs associated with the

Chevrolet Impala and Audi A7, it would not be responsible for those expenses.

Defendant to submit proposed revised regulations or procedures related to vehicle seizures

incident to criminal arrests.14 See HVT, Inc., 2021 WL 3828475, at *2 (E.D.N.Y. Aug. 26,

2021); HVT, Inc., 2019 WL 9828488, at *2 (E.D.N.Y. Aug. 23, 2019). The Court now directs

Defendant to submit revised regulations related to civil-incident car seizures to the Court for

review.

III. Conclusion

For the foregoing reasons, the Court denies Plaintiffs’ summary judgment motions with

respect to their Fourth Amendment claims and, in light of the Court’s ruling, directs Plaintiffs to

show cause as to why their Fourth Amendment claims should not be dismissed. The Court

grants Plaintiffs’ summary judgment motions with respect to their procedural due process claims

and directs Plaintiffs to move for compensatory damages and attorneys’ fees within sixty days of

the date of this Memorandum and Order.

14 The Court approved the HVT, Inc. v. Port Auth. of N.Y. & N.J. parties’ proposed

remedies in part, including that: (1) within five business days of a vehicle seizure, the PAPD

must send notice of the seizure to titled owners, registered owners and lienholders via certified

mail; (2) the notice should indicate the right to a hearing; (3) the notice should explain the

hearing process; and (4) the titled owner, registered owner or lienholder is responsible for paying

the towing fee when a car must be seized and towed for safekeeping after the arrest of the driver.

2021 WL 3828475, at *2 (E.D.N.Y. Aug. 26, 2021). The parties are continuing negotiations on

additional outstanding proposed remedies. (Status Report, HVT, Inc. v. Port Auth. of N.Y. &

N.J., No. 15-CV-5867, 2021 WL 3828475 (E.D.N.Y. Aug. 26, 2021), Docket Entry No. 85;

Scheduling Order dated July 14, 2022.)

The Court further directs Defendant, within sixty days of this Memorandum and Order, to submit

proposed revised regulations or procedures for the Court’s review.

Dated: August 4, 2022

Brooklyn, New York

SO ORDERED:

s/ MKB

MARGO K. BRODIE

United States District Judge