Polizzi v. County of Schoharie

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

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JOSEPH POLIZZI, LISA TODD,

and BARBARA GOODFELLOW,

Plaintiffs,

-v- 1:23-CV-1311

COUNTY OF SCHOHARIE and

MARY ANN WOLLABER, in her

official capacity as Treasurer for

Schoharie County,

Defendants.

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APPEARANCES: OF COUNSEL:

DAVID M. GIGLIO & DAVID M. GIGLIO, ESQ.

ASSOCIATES, LLC

Attorneys for Plaintiffs

13 Hopper Street

Utica, NY 13501

JOHNSON LAWS, LLC APRIL J. LAWS, ESQ.

Attorneys for Defendants

646 Plank Road, Suite 205

Clifton Park, NY 12065

DAVID N. HURD

United States District Judge

DECISION and ORDER

I. INTRODUCTION

Plaintiffs Joseph Polizzi (“Polizzi”), Barbara Goodfellow (“Goodfellow”),

and Lisa Todd (“Todd”) owned real estate in the County of Schoharie, New

York (the “County”). But each plaintiff failed to pay their property taxes, so

the County eventually foreclosed on each parcel. The delinquent properties

were later auctioned off by the County at the direction of County Treasurer

Mary Ann Wollaber (the “Treasurer”).

The proceeds from the auctions were used to satisfy the tax liens on each

plaintiffs’ property. But the County kept the surplus proceeds from each tax

sale, too. Under New York State law, the taxing authority has historically

been permitted to retain these windfalls. But the constitutional validity of

that practice has recently been thrown into some doubt.

On May 25, 2023, the Supreme Court issued its opinion in a case called

Tyler v. Hennepin County, 598 U.S. 631. There, a Minnesota property owner

whose condo was seized and auctioned off to satisfy a tax debt challenged the

municipality’s retention of the surplus proceeds from the sale. As relevant

here, the Supreme Court held that the former property owner had plausibly

alleged a Fifth Amendment takings claim.

In the wake of the Supreme Court’s decision in Tyler, each plaintiff in this

case demanded from the County a refund of the surplus proceeds generated

from the sale of each of their properties. But the County has refused to cough

up the difference. So plaintiffs filed this 42 U.S.C. § 1983 action alleging that

the County and the Treasurer (collectively “defendants”) have violated their

constitutional rights.

On January 5, 2024, defendants moved under Rule 12(b)(6) of the Federal

Rules of Civil Procedure to dismiss plaintiffs’ complaint in its entirety. Dkt.

No. 14. Briefly stated, defendants argue that: (1) some of plaintiffs’ § 1983

claims are time-barred; (2) plaintiffs’ timely claims cannot take advantage of

the new Supreme Court precedent from Tyler; and (3) plaintiffs’ state-law

claims are either meritless or procedurally deficient. Id.

The motion has been fully briefed and will be considered on the basis of

the submissions without oral argument.

II. BACKGROUND

Goodfellow owned real property at 1354 Sawyer Hollow Road in the Town

of West Fulton. Compl. ¶ 13. She owed back taxes of $20,000. Id. ¶ 14. At

the direction of the Treasurer, the County foreclosed on the property and sold

it at a tax auction for $39,000 on June 19, 2019. Id. ¶ 13. She demanded a

refund of the surplus on September 19, 2023, but was refused. Id. ¶ 15.

Todd owned real property at 348 Beckers Corners Road in the Town of

Carlisle. Compl. ¶ 10. She owed back taxes of $16,000. Id. ¶ 11. At the

direction of the Treasurer, the County foreclosed on the property and sold it

at a tax auction for $37,000 on November 10, 2020. Id. ¶ 10. She demanded

a refund of the surplus on August 17, 2023, but was refused. Id. ¶ 12.

Polizzi owned real property at 129 Polizzi Road in the Town of Carlisle.

Compl. ¶ 7. He owed back taxes of $55,000. Id. ¶ 8. At the direction of the

Treasurer, the County foreclosed on the property and sold it at a tax auction

for $165,000 on June 19, 2023. Id. ¶ 7. He demanded a refund of the surplus

on August 17, 2023, but the County refused. Id. ¶ 9.

III. LEGAL STANDARD

To survive a Rule 12(b)(6) motion to dismiss, the complaint’s factual

allegations must be enough to elevate the plaintiff’s right to relief above the

speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). So

while legal conclusions can provide a framework for the complaint, they must

be supported with meaningful allegations of fact. Ashcroft v. Iqbal, 556 U.S.

662, 679 (2009). In short, a complaint must contain “enough facts to state a

claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.

To assess this plausibility requirement, the court must accept as true all of

the factual allegations contained in the complaint and draw all reasonable

inferences in the non-movant’s favor. Erickson v. Pardus, 551 U.S. 89, 94

(2007). In doing so, the court generally confines itself to the facts alleged in

the pleading, any documents attached to the complaint or incorporated into it

by reference, and matters of which judicial notice may be taken. Goel v.

Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (quoting Concord Assocs., L.P.

v. Ent. Props. Tr., 817 F.3d 46, 51 n.2 (2d Cir. 2016)).

IV. DISCUSSION

Plaintiffs’ eight-count complaint asserts § 1983 claims under the Takings

Clause (Counts One and Two), the Excessive Fines Clause (Count Four), and

the substantive component of the Due Process Clause (Count Seven). The

complaint also asserts state constitutional claims (Counts Three, Five, and

Eight) and a common-law claim for unjust enrichment (Count Six).

A. Threshold Matters

The parties’ briefing tees up four issues that must be addressed right from

the outset: (1) whether Goodfellow’s § 1983 claims are time-barred; (2) the

status of the Treasurer as a defendant in this action; (3) whether plaintiffs

can pursue their § 1983 claims against the County; and (4) the impact of the

Supreme Court’s decision in Tyler on the viability of those § 1983 claims.

1. Goodfellow’s § 1983 Claims

First, defendants argue that Goodfellow’s § 1983 claims must be dismissed

because they are time-barred. Defs.’ Mem., Dkt. No. 14-1 at 19.1 According

to defendants, a three-year limitations period applies to Goodfellow’s § 1983

claims under the Fifth, Eighth, and Fourteenth Amendments. Id. As they

1 Pagination corresponds to the CM/ECF header.

explain, the tax sale of Goodfellow’s property occurred on June 19, 2019, well

over three years before this action was filed on October 26, 2023. Id.

“Claims under section 1983 are governed by the statute of limitations and

tolling rules provided by analogous state law.” Harris v. Tioga County, 663 F.

Supp. 3d 212, 234 (N.D.N.Y. 2023) (citation omitted); see also Bd. of Regents

v. Tomanio, 446 U.S. 478, 483–92 (1980). In New York, the limitations period

is three years. See, e.g., Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994).

Measured against this general body of law, Goodfellow’s § 1983 claims are

time-barred. The parties appear to agree that these claims accrued when the

County sold Goodfellow’s parcel at auction on June 19, 2019. Pearl v. City of

Long Beach, 296 F.3d 76, 80 (2d Cir. 2002) (explaining a § 1983 claim accrues

when the plaintiff “knows or has reason to know of the injury which is the

basis of his action”).

That conclusion comports with current Supreme Court precedent, which

holds that “[a] property owner has an actionable Fifth Amendment takings

claim when the government takes his property without paying for it.” Knick

v. Twp. of Scott, 588 U.S. 180 (2019). Indeed, plaintiffs go on to concede that

Goodfellow’s § 1983 claims are time-barred by this three-year limitations

period. Pl.’s Opp’n, Dkt. No. 18 at 8.

Plaintiffs’ concession obviates the need to discuss the possibility of tolling

or, for that matter, to make a judgment call about when these § 1983 claims

accrued. Wallace v. Kato, 549 U.S. 384, 388 (2007) (explaining that claim

accrual is a question of federal law); Stensrud v. Rochester Genesee Reg’l

Transp. Auth., 507 F. Supp. 3d 444, 452 (W.D.N.Y. 2020) (analyzing tolling

questions for a takings claim). Accordingly, Goodfellow’s § 1983 claims will

be dismissed.

2. The Treasurer as a Defendant

Second, defendants argue that the Treasurer (who is named in her official

capacity) must be dismissed as a defendant. Defs.’ Mem. at 19–23. According

to defendants, plaintiffs’ § 1983 claims against the Treasurer are redundant

of their § 1983 claims against the County. Id. at 19–20. To the extent that

these claims might be independently actionable, defendants argue that the

Treasurer is entitled to legislative and/or qualified immunity. Id. at 21–23.

A § 1983 “official-capacity” claim against a municipal official “is treated as

an action against the municipality itself.” Coon v. Town of Springfield, 404

F.3d 683, 687 (2d Cir. 2005). Where, as here, the plaintiff has also named the

municipality as a defendant, courts generally dismiss official-capacity claims

as redundant or duplicative. See, e.g., Hulett v. City of Syracuse, 253 F. Supp.

3d 462, 498–99 (N.D.N.Y. 2017).

Measured against this body of law, plaintiffs’ § 1983 claims against the

Treasurer are redundant of their § 1983 claims against the County. Under

very limited circumstances, a plaintiff can pursue an “official-capacity” claim

against a public official using a doctrine called Ex parte Young, which evades

the Eleventh Amendment’s immunity bar. Marino v. City Univ. of N.Y., 18 F.

Supp. 3d 320, 333 (E.D.N.Y. 2014).

But resort to this doctrine is unnecessary where, as here, the defendant is

not entitled to Eleventh Amendment immunity in the first place. Besides,

plaintiffs have “no objection” to the dismissal of the Treasurer. Pl.’s Opp’n at

8. This concession obviates the need to discuss whether, or how, plaintiffs’

state-law claims might have applied to this defendant’s conduct. Accordingly,

plaintiffs’ claims against the Treasurer will be dismissed.

3. Municipal Liability

Third, defendants argue that plaintiffs cannot assert their § 1983 claims

against the County because they have not plausibly alleged that a municipal

policy or practice caused the specific constitutional violations about which

they complain. Defs.’ Mem. at 23–25.

“[A] municipality can be held liable under Section 1983 if the deprivation

of the plaintiff’s rights under federal law is caused by a governmental custom,

policy, or usage of the municipality.” Jones v. Town of E. Haven, 691 F.3d 72,

80 (2d Cir. 2012). But “[t]he policy or custom need not be memorialized in a

specific rule or regulation,” Kern v. City of Rochester, 93 F.3d 38, 44 (2d Cir.

1996), and may be “reflected in either action or inaction,” Cash v. County of

Erie, 654 F.3d 324, 341–42 (2d Cir. 2011).

Upon review, plaintiffs can maintain their § 1983 claims directly against

the County under this body of law. In municipal liability cases under § 1983,

“the question [is] whether there is a direct causal link between a municipal

[or county] policy or custom and the alleged constitutional deprivation.” City

of Canton v. Harris, 489 U.S. 378, 385 (1989).

To be sure, plaintiffs’ complaint does not describe the precise contours of a

particular County policy that might have caused the constitutional violations

they have alleged. A review of extrinsic evidence offered by defendants tends

to suggest that the County was acting pursuant to, or at least in accordance

with, Article 11 of the New York State Real Property Tax Law.

But this showing, if true, would not necessarily defeat a § 1983 municipal-

liability claim based on the County’s alleged conduct. First, it is procedurally

acceptable to sue a municipality directly under § 1983. Askins v. Doe No. 1,

727 F.3d 248, 253 (2d Cir. 2013) (recognizing same). Second, and relatedly,

the good-faith defense offered by the Supreme Court’s qualified immunity

doctrine is not available to municipalities. Owen v. City of Independence, 445

U.S. 622 (1980). And third, other courts have already rejected the notion that

a municipal defendant can claim reliance on existing state law to shield itself

from § 1983 claims premised on the retention of a taxpayer’s surplus equity.

For instance, in Freed v. Thomas, 81 F.4th 655 (6th Cir. 2023), a panel of

the Sixth Circuit affirmed a trial court’s grant of summary judgment in favor

of the taxpayer-plaintiff who asserted a § 1983 takings claim premised on the

defendant-municipality’s retention of the surplus proceeds from the sale of

his property. Id. at 659. In doing so, the panel rejected the municipality’s

assertion that “it was merely following a state statute when it foreclosed on

[the plaintiff’s] home.” Id. at 661. As the panel explained, the county had

“voluntarily” and “repeatedly” served as the foreclosing governmental unit

and then chosen to “retain the proceeds” from each sale. Id. In the panel’s

view, this conduct was a “policy decision with a ‘direct causal link’ to the

constitutional violation” suffered by the taxpayer-plaintiff. Id.

Notably, the state-law foreclosure scheme at issue in Freed was explicitly

“voluntary” in nature.2 81 F.4th at 661. Perhaps a mandatory foreclosure

scheme might be more defensible. But it is not clear at this early stage of the

case whether New York’s tax foreclosure scheme vests similar discretion in

the taxing authority or, relatedly, whether the County implemented the tax

foreclosure scheme in some kind of a voluntary manner.

And even if it turned out that New York’s foreclosure scheme was in fact a

mandatory one, that would not necessarily compel the conclusion that the

County’s alleged conduct was constitutional, either. For one thing, the issue

that matters more than the text of some state tax statute is how the County

2 The other notable feature of Freed is that the trial court decision from which the municipality

had appealed; i.e., the one that found in the taxpayer’s favor, was decided on Takings Clause grounds

before the Supreme Court decided Tyler.

actually implemented the foreclosure scheme on which it has purportedly

relied in selling of plaintiffs’ parcels. For another, the existence of state-law

remedies other than foreclosure-and-sale tends to suggest that there was a

“voluntary” or “discretionary” aspect to the County’s decision to foreclose on

plaintiffs’ parcels.

On that second point, the New York Court of Appeals has noted that an

Article 11 in rem tax foreclosure proceeding is not the only kind of remedy

available to a municipality seeking to clear a delinquent tax debt. Kennedy v.

Mossafa, 100 N.Y.2d 1, 7 n.1 (2003). As relevant here, some of the other

state-law remedies identified by the Court of Appeals in Kennedy appear to

result in a refund of surplus equity to the debtor-taxpayer. Id.

In short, it is impossible to say conclusively, at least on the basis of the

pleadings, how the existence of Article 11’s real property foreclosure scheme

plays into the constitutionality of the County’s alleged conduct. Drawing all

reasonable inferences in their favor, plaintiffs have plausibly alleged, at least

for now, that the County has a policy, custom, and/or practice of retaining the

surplus proceeds generated by tax foreclosure sales, and that this policy,

custom, or practice caused the particular constitutional harm(s) they

suffered: the loss of the surplus equity in each parcel. Accordingly, this

argument must be rejected.

4. The Impact of the Supreme Court’s Opinion in Tyler

Fourth, defendants argue that plaintiffs’ § 1983 claims against the County

necessarily fail because all three parcels were sold before the Supreme Court

issued Tyler. Defs.’ Mem. at 25. According to defendants, the Tyler decision

“established a new principle of law regarding the surplus proceeds from tax

sales” therefore “it should not be retroactively applied here” because “doing so

would create avoidable injustice and hardship.” Id. at 28.

Upon review, this argument must be rejected. In Harper v. Virginia Dep’t

of Taxation, the Supreme Court concluded that when it “applies a rule of

federal law to the parties before it, that rule is the controlling interpretation

of federal law and must be given full retroactive effect in all cases still open

on direct review and as to all events, regardless of whether such events

predate or postdate [its] announcement of the rule.” 509 U.S. 86, 97 (1993).

A straightforward application of Harper’s holding leads to the conclusion

that Tyler applies to plaintiffs’ § 1983 Takings Clause claims: Tyler has “full

retroactive effect . . . as to all events,” even if those events—such as the tax

sales—“predate[d]” the announcement of the rule.

But even if there were some doubt about how this retroactivity question

should be answered, it bears emphasizing that a § 1983 takings claim based

on the retention of a taxpayer’s surplus equity was already viable before the

Supreme Court decided Tyler. See Dorce v. City of N.Y., 608 F. Supp. 3d 118,

139–140 (S.D.N.Y. 2022) (denying motion to dismiss § 1983 takings claim

based on retention of surplus equity); Freed v. Thomas, 2021 WL 942077, at

*2 (E.D. Mich. Feb. 26, 2021) (awarding summary judgment on § 1983

takings claim based on similar fact pattern). To be sure, the Supreme Court’s

decision in Tyler appears to have strengthened the force of plaintiffs’ § 1983

claims. But it did not create them out of whole cloth.3 Accordingly, this

argument will be rejected.

B. Federal Claims

Goodfellow’s § 1983 claims have been dismissed. But plaintiffs Polizzi and

Todd have asserted § 1983 claims under the Fifth Amendment’s Takings

Clause (Counts One and Two), the Eighth Amendment’s Excessive Fines

Clause (Count Four), and the substantive component of the Due Process

Clause (Count Seven).

1. Takings Clause (Counts One and Two)

Plaintiffs Polizzi and Todd assert § 1983 claims against the County under

the Fifth Amendment’s Takings Clause. According to plaintiffs, the retention

of the surplus proceeds generated from the sale of their parcels violated this

3 Bankruptcy practice has recognized an analogous principle. For instance, in a pre-Tyler case

decided in the bankruptcy context, the Second Circuit concluded that a municipality acting pursuant

to Article 11’s “strict foreclosure” scheme was not entitled to a presumption that its conduct yielded

“reasonably equivalent value” for the taxpayer’s property. Gunsalus v. County of Ontario, 37 F.4th

859, 866 (2d Cir. 2022). The same is true of bankruptcy challenges made after Tyler, too. DuVall v.

County of Ontario, 83 F.4th 147, 155 (2d Cir. 2023).

constitutional provision, either because the properties were taken without a

valid public use (Count One) or without just compensation (Count Two).

The Fifth Amendment’s Takings Clause provides that “private property

[shall not] be taken for public use, without just compensation.” U.S. Const.

amend. V. This restriction has been incorporated against the States through

the Due Process Clause of the Fourteenth Amendment. Chicago B. & Q. R.R.

v. City of Chicago, 166 U.S. 226 (1897). “A property owner states a claim for

a violation of the Takings Clause when the plaintiff adequately alleges that

the government took the plaintiff’s property for public use without paying for

it.” Dorce, 608 F. Supp. 3d at 139.

Measured against this general body of constitutional law, plaintiffs Polizzi

and Todd have plausibly alleged § 1983 takings claims against the County

based on its retention of the surplus proceeds in their properties. Knick v.

Twp. of Scott, 588 U.S. at 180 (“A property owner has an actionable Fifth

Amendment takings claim when the government takes his property without

paying for it.”).

In an effort to avoid this straightforward conclusion, the County points out

that the Supreme Court’s opinion in Tyler explicitly acknowledged that its

prior opinion on the retention of surplus equity—a case called Nelson v. City

of N.Y., 352 U.S. 103 (1956)—remained good law. Defs.’ Mem. at 26. The

County relies on that older holding from Nelson to argue that there can be no

takings claim where, as here, the plaintiffs had “ample notice of the County’s

intention to seek foreclosure.” Id.

But that argument seems at odds with the reason why Tyler held that

Nelson was distinguishable. In Tyler, the Supreme Court explained that the

city foreclosure ordinance at issue in Nelson did not preclude an owner from

claiming the surplus proceeds of a foreclosure sale. 598 U.S. at 644. Instead,

the city ordinance “simply defined the process through which the owner could

claim the surplus.” Id.

It is not clear from the face of the pleadings that Nelson compels dismissal

of plaintiffs’ claims. It may well be that the pre-foreclosure notice provided to

plaintiffs by the County, plus the attendant procedural protections, provided

plaintiffs a meaningful opportunity to recover the surplus equity in a manner

consistent with both Nelson and Tyler.

Even so, this conclusion does not necessarily follow from the County’s

general argument about the nature and extent of pre-foreclosure notices that

it provided. Adequate pre-foreclosure notice sounds more like a defense to a

due process claim. But the takings claims are concerned with the recovery of

the surplus equity. Pre-foreclosure notice, alone, is probably not a defense to

that kind of claim. Cf. Dorce, 608 F. Supp. 3d at 140 (“The crux of the parties’

dispute as to the plaintiffs’ takings claim is whether there is, in fact, a

process provided to enable foreclosed-upon landowners to recover their

surplus equity in this case.”).

In sum, plaintiffs Polizzi and Todd have plausibly alleged that the County

violated their Fifth Amendment rights by retaining the surplus proceeds from

the tax foreclosure sales of their parcels. Accordingly, defendants’ motion to

dismiss these § 1983 claims must be denied.

C. Excessive Fines Clause (Count Four)

Plaintiffs Polizzi and Todd assert a § 1983 claim against the County under

the Eighth Amendment’s Excessive Fines Clause. According to plaintiffs, the

County’s retention of the surplus equity from the tax sale of their properties

violated this constitutional provision.

The Eighth Amendment prohibits “excessive fines.” U.S. Const. amend.

VIII. This restriction has been incorporated against the States through the

Due Process Clause of the Fourteenth Amendment. Timbs v. Indiana, 139 S.

Ct. 682, 687 (2019). The Second Circuit has established a two-step inquiry

for evaluating “whether a financial penalty is excessive under the Eighth

Amendment.” United States v. Viloski, 814 F.3d 104, 109 (2d Cir. 2016).

“First, a court must consider whether the payment or forfeiture at issue

constitutes a ‘fine,’ meaning that it is punitive in nature and not purely

‘remedial.’” Farina v. Metro. Transp. Auth., 409 F. Supp. 3d 173, 194

(S.D.N.Y. 2019) (quoting Viloski, 814 F.3d at 109). “A fine may be punitive

where it imposes an economic penalty on the person for that person’s actions,

and seeks to deter future wrongdoing.” Dorce, 608 F. Supp. 3d at 143. “By

contrast, a fine is remedial if it is ‘intended only to compensate the

government for lost revenue.” Id.

“Second, a court weighs four factors to determine whether the fine is

‘grossly disproportional’ to the underlying offense.” Farina, 409 F. Supp. 3d

at 194 (quoting Viloski, 814 F.3d at 110). They are taken from a Supreme

Court case called United States v. Bajakajian, 524 U.S. 321 (1998). These

factors include:

(1) the essence of the [underlying offense] of the

[plaintiff] and its relation to other criminal activity, (2)

whether the [plaintiff] fits into the class of persons for

whom the statute was principally designed, (3) the

maximum sentence and fine that could have been

imposed, and (4) the nature of the harm caused by the

[plaintiff’s] conduct.

Dorce, 608 F. Supp. 3d at 143. But the Bajakajian factors are not intended to

be exhaustive. Id. “Ultimately, whether a fine is excessive involves solely a

proportionality determination.” Id. (citation omitted).

Measured against this general body of constitutional law, plaintiffs Polizzi

and Todd have plausibly alleged § 1983 excessive fines claims against the

County based on its retention of the surpluses. First off, the Supreme Court

has held that “civil in rem forfeitures are fines for purposes of the Eighth

Amendment when they are at least partially punitive.” Timbs, 139 S. Ct. at

690. Second, courts in this Circuit have relied on this general principle from

Timbs to find that it is plausible that a defendant’s retention of a taxpayer’s

surplus equity is at least partially punitive under the Eighth Amendment for

purposes of an excessive-fines claim. Dorce, 608 F. Supp. 3d at 143–44. And

third, the two-Justice concurrence in Tyler strongly suggested that a debtor

has an actionable Eighth Amendment excessive-fines claim where, as here,

the municipal defendant retains surplus proceeds from a tax debt. 598 U.S.

at 648 (Gorsuch, J., concurring).

These three factors, separately and together, lead to the conclusion that

plaintiffs have plausibly alleged that the County’s retention of the surplus

proceeds is a “fine.” Plaintiffs Polizzi and Todd have also plausibly alleged

that this “fine” is disproportionate their tax “offenses”: the County allegedly

retained a $110,000 surplus from the sale of Polizzi’s property, compl. ¶¶ 7–9,

and allegedly retained a $21,000 surplus from Todd’s property, id. ¶¶ 10–12.

In short, plaintiffs have plausibly alleged that the County has “fined”

them by retaining “disproportionate” financial surpluses without attendant

Eighth Amendment justifications (beyond the delinquent tax debts). Those

allegations are sufficient to state a plausible § 1983 claim.

In an effort to avoid this straightforward conclusion, defendants argue

that plaintiffs cannot show that the County’s conduct is anything other than

“remedial” because each plaintiff had “numerous opportunities to satisfy

their tax obligations.” Defs.’ Mem. at 35. Again, however, a pre-foreclosure

notice and attendant procedural process is not necessarily sufficient to defeat

an “excessive fines” claim as a matter of law.

In sum, the reasoning in Tyler’s concurrence and the application of the

Bajakajian factors from Dorce both lead to the conclusion that plaintiffs have

alleged plausible Eighth Amendment excessive-fines claims. Accordingly,

defendants’ motion to dismiss this § 1983 claim must be denied.

D. Substantive Due Process (Count Seven)

Plaintiffs Polizzi and Todd assert a § 1983 claim against the County under

the substantive component of the Due Process Clause (Count Seven).

Upon review, this claim must be dismissed. Where, as here, “a particular

Amendment provides an explicit textual source of constitutional protection

against a particular sort of government behavior, that Amendment, not the

more generalized notion of substantive due process, must be the guide for

analyzing these claims.” Stop the Beach Renourishment, Inc. v. Fla. Dep’t of

Env’t Prot., 560 U.S. 702, 721 (2010) (cleaned up).

Consistent with this general constitutional principle, the Supreme Court

has specifically held that substantive due process cannot “do the work of the

Takings Clause.” Stop the Beach Renourishment, Inc., 59 F.4th at 556. The

Second Circuit has followed suit. Cmty. Hous. Improvement Program v. City

of N.Y., 59 F.4th 540, 556–57 (2d Cir. 2023). The same logic applies to the

Eighth Amendment’s excessive-fines claim. Accordingly, plaintiffs’ § 1983

substantive due process claim (Count Seven) must be dismissed.

C. State-Law Claims (Counts Three, Five, and Eight)

Plaintiffs’ complaint asserts state constitutional claims (Counts Three,

Five, and Eight) and a common-law claim for unjust enrichment (Count Six).

1. State Constitutional Claims (Counts Three, Five, and Eight)

Plaintiffs’ state constitutional claims arise under the takings clause

(Count Three), the excessive fines clause (Count Five), and the substantive

due process clause (Count Eight). Upon review, these state-law claims must

be dismissed. “[T]he New York constitution provides for a private right of

action only where remedies are otherwise unavailable under common law or

Section 1983.” Farina, 409 F. Supp. 3d at 212 (collecting cases). Where, as

here, remedies are available under other provisions of law, court routinely

dismiss state constitutional claims based on the same facts. Id. Accordingly,

plaintiffs’ state constitutional claims will be dismissed.

2. Unjust Enrichment (Count Six)

Plaintiffs have also asserted a state-law claim for unjust enrichment.4 To

state a claim for unjust enrichment, a plaintiff must allege that “(1) the other

party was enriched, (2) at that party’s expense, and (3) that it is against

4 Although Goodfellow consented to the dismissal of her § 1983 claims on statute of limitations

grounds, this claim is subject to a longer, six-year limitations period. See, e.g., Golden Pacific

Bancorp v. F.D.I.C., 273 F.3d 509, 518 (2d Cir. 2001).

equity and good conscience to permit the other party to retain what is sought

to be recovered.” Dorce, 608 F. Supp. 3d at 135 (quoting City of Almaty v.

Sater, 503 F. Supp. 3d 51, 59 (S.D.N.Y. 2020)).

Upon review, defendants’ motion to dismiss this claim will be denied. “A

plaintiff may recover under a theory of unjust enrichment where the plaintiff

paid a tax or fee that is not properly retained by a public entity.” Farina, 409

F. Supp. 3d at 219. That is essentially what plaintiffs have alleged: that the

County forced them to pay an involuntary tax or fee, and that part of that tax

or fee (i.e., the surplus), is not properly retained by the municipality. As the

court in Farina noted, “it is narrowly possible” that the defendants’ retention

of this surplus violates this common-law rule. Accordingly, defendants’

motion to dismiss this state-law claim will be denied.

V. CONCLUSION

Therefore, it is

ORDERED that

1. Defendants’ motion to dismiss is GRANTED in part and DENIED in

part;

2. Plaintiff Goodfellow’s § 1983 claims are DISMISSED;

3. Plaintiffs’ claims against Mary Ann Wollaber are DISMISSED;

4. The Clerk of the Court is directed to TERMINATE defendant Mary

Ann Wollaber as a defendant in this action;

5. Plaintiffs Polizzi and Todd’s § 1983 substantive due process claim

(Count Seven) is DISMISSED;

6. Plaintiffs Polizzi, Todd, and Goodfellow’s state constitutional claims

(Counts Three, Five, and Eight) are DISMISSED;

7. Plaintiffs Polizzi and Todd’s § 1983 claims under the Takings Clause

and the Excessive Fines Clause (Counts One, Two, and Four) REMAIN for

discovery;

8. Plaintiffs Polizzi, Todd, and Goodfellow’s common-law claim for unjust

enrichment (Count Six) REMAINS for discovery; and

9. The County shall FILE and SERVE an answer on or before Tuesday,

March 26, 2024.

IT IS SO ORDERED.

U.S. Disfrict Judge

Dated: March 12, 2024

Utica, New York.

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