The opinion
UNITED STATES DISTRICT COURT ss ee ae
WESTERN DISTRICT OF NEW YORK
APR 3 0 2024
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□□ □□ Lot
STERN DISTRICT or
MAXIM LEVIN and
VODKA PROPERTIES LLC,
Plaintiffs, 20-CV-1511 (JLS) (LGF)
v.
CITY OF BUFFALO,
BYRON W. BROWN, Individually and
in his capacity as the Mayor of the City
of Buffalo,
JAMES COMERFORD, JR.,
Individually and in his capacity as the
Commissioner of the Department
of Permit & Inspection Services,
LOU PETRUCCI, Individually and in
his capacity as the Deputy
Commissioner of the Department of
Permit & Inspection Services,
TRACY KRUG, Individually and in his
capacity as an inspector for the City of
Buffalo,
KEVIN COYNE, Individually and in his
capacity as an inspector for the City of
Buffalo, and
EMPIRE DISMANTLEMENT CO.,
Defendants.
EMPIRE DISMANTLEMENT CO.,
Cross Claimant,
V.
BYRON W. BROWN, Individually and
in his capacity as the Mayor of the City
of Buffalo,
CITY OF BUFFALO,
JAMES COMERFORD, JR.,
Individually and in his capacity as the
Commissioner of the Department of □
Permit & Inspection Services,
KEVIN COYNE, Individually and in his
capacity as an inspector for the City of
Buffalo,
TRACY KRUG, Individually and in his
capacity as an inspector for the City of
Buffalo, and
LOU PETRUCCI, Individually and in
his capacity as the Deputy
Commissioner of the Department of
Permit & Inspection Services,
Cross Defendants.
DECISION AND ORDER
On February 29, 2024, this Court issued a Decision and Order addressing,
among other things, the parties’ motions for summary judgment (Dkt. 28, 30, 31).
Dkt. 66. The Court ordered that only Plaintiffs’ third claim (as asserted against the
City of Buffalo) may proceed—except that it reserved decision on Plaintiffs’ seventh
claim against the City of Buffalo. Id. Plaintiffs moved for reconsideration of that
Decision and Order. See Dkt. 67.
For the reasons below, Plaintiffs’ motion for reconsideration is DENIED.
Further, summary judgment as to Plaintiffs’ seventh claim against the City of
Buffalo is DENIED. As a result, this action will proceed against the City of Buffalo
on Plaintiffs’ third and seventh claims.
DISCUSSION
I. MOTION FOR RECONSIDERATION
Plaintiffs seek, pursuant to “the Court’s inherent authority as well as Fed. R.
Civ. P. 54(b),” reconsideration of the “Court’s dismissal of Plaintiffs’ procedural due
process claim and its grant of summary judgment to the individual defendants on
qualified immunity grounds... .” See Dkt. 67-1.
The Second Circuit has “limited district courts’ reconsideration of earlier
decisions under Rule 54(b) by treating those decisions as law of the case, which
gives a district court discretion to revisit earlier rulings in the same case, subject to
the caveat that ‘where litigants have once battled for the court’s decision, they
should neither be required, nor without good reason permitted, to battle for it
again.” Off. Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand,
LIP, 322 F.3d 147, 167 (2d Cir. 2008) (quoting Zdanok v. Glidden Co., 327 F.2d 944,
953 (2d Cir.1964)). Thus, “those decisions may not usually be changed unless there
is ‘an intervening change of controlling law, the availability of new evidence, or the
need to correct a clear error or prevent a manifest injustice.” Id. (quoting Virgin
Atl. Airways, Lid. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.1992)).
Here, Plaintiffs fail to identify any proper grounds for reconsideration of the
Court’s Decision and Order. The motion at Dkt. 67, therefore, is denied.
II. PLAINTIFFS’ SEVENTH CLAIM
In the seventh cause of action, Plaintiffs assert a claim under 42 U.S.C. §
1983 based on alleged unreasonable search and seizure in violation of the Fourth
and Fourteenth-Amendments. See Dkt. 1 at 29-30. Judge Foschio recommended
that this Court deny summary judgment as to the seventh claim because “questions
of material fact” exist—specifically, “whether City Defendants’ invocation of the
Commissioner’s emergency condemnation and demolition authority to demolish the
Building were warranted based on the condition of the Building and Property. □ □ .”
Dkt. 53 at 66.
This Court has carefully reviewed the [53] Report and Recommendation, the
objections briefing, and the relevant record. Based on that de novo review, see Fed.
R. Civ. P. 72(b)(8), this Court accepts Judge Foschio’s recommendation. As such,
Plaintiffs’ seventh claim shall proceed against the City of Buffalo.!
1 This Court's prior conclusions regarding qualified immunity, see Dkt. 66 at 10-16,
do not alter this conclusion. See Triolo v. Nassau Cnty., 24 F.4th 98, 108 n.7 (2d
Cir. 2022) (the “distinction between reasonableness as a component of a Fourth
Amendment violation and reasonableness as a component of an immunity defense’
results in a situation where ‘an officer is protected in some circumstances even
when he mistakenly concludes that probable cause is present when he reasonably
believes that a reasonably prudent police officer would have acted even though a
reasonably prudent police officer would not have acted.”) (quoting Oliveira v.
Mayer, 23 F.3d 642, 649 (2d Cir. 1994)).
CONCLUSION
In sum, Plaintiffs’ [67] motion for reconsideration is DENIED. Further,
summary judgment is DENIED as to Plaintiffs’ seventh claim against the City of
Buffalo. As a result, and for the reasons set forth in the Court’s February 29, 2024
Decision and Order, see Dkt. 66, this action shall proceed against the City of Buffalo
on Plaintiffs’ third and seventh claims.
SO ORDERED.
Dated: April 30, 2024 eS
Buffalo, New York oe
VL /
JOHNA. SINATRA, JR.
UNITED STATES DISTRICT JUDGE