Levin v. City of Buffalo

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UNITED STATES DISTRICT COURT Ss □□

WESTERN DISTRICT OF NEW YORK MAR 0 4 2025

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MAXIM LEVIN and

VODKA PROPERTIES LLC,

20-CV-1511 (JLS) (LGF)

Plaintiffs,

Vv.

CITY OF BUFFALO,

Defendant.

DECISION AND ORDER

Plaintiffs Maxim Levin and Vodka Properties LLC (collectively, “Plaintiffs”)

commenced this action pursuant to 42 U.S.C. § 1983 and New York law asserting

claims against various Defendants—including the City of Buffalo (the “City’)—

relating to the demolition of a two-family residential building located at 393

Hampshire Street in Buffalo, New York. See Dkt. 1.

On February 29, 2024, this Court issued a Decision and Order addressing the

parties’ motions for summary judgment, Dkt. 66, and ordered that this action shall

proceed against the City on Plaintiffs’ Third claim (unlawful taking under 42 U.S.C.

§ 1983). Id. The Court dismissed Plaintiffs’ remaining claims—except that it

reserved decision on Plaintiffs’ Seventh claim (unreasonable search and seizure

under Section 1983) against the City. Id. In a subsequent Decision and Order, the

Court ordered that Plaintiffs’ Seventh claim shall also proceed against the City. See

Dkt. 72. As a result, only Plaintiffs’ Third claim and Seventh claim (as asserted

against the City) remain.

The Court then set a trial date. See Dkt. 74. But in its trial brief, the City

argued that Plaintiffs “cannot prevail at trial” because “the only claims that remain

are brought under 1983 for constitutional violations against the City of Buffalo, and

those claims fail under Monell v. Dep’t of Soc. Serus., 486 U.S. 658 (1978).” Dkt. 95

at 16-17. As such, the City “suggest[s] that reconsideration is appropriate here, to

avoid the unnecessary expenditure of time and resources at trial to result in a

directed verdict.” Id. at 18. The Court ordered supplemental briefing on this issue.

See Dkt. 108.

In its supplemental memorandum, the City argues that, in “dismissing

Plaintiffs{] claims for Municipal Liability” and “granting the City Defendants’

motion as to the individually named defendants, the Court foreclosed any

opportunity for the Plaintiffs to prevail under § 1983 for alleged constitutional

violations at trial.” Dkt. 109 at 9. And because the “only two (2) remaining claims

are asserted under § 1983 against the only remaining defendant, the City of

Buffalo, the Plaintiff cannot prevail at trial.” Id. The City, therefore, “submits that

the Complaint should be dismissed through reconsideration or a directed verdict

prior to proof in the sake of judicial economy.” Id.

In response, Plaintiffs “agree[d] that a municipality cannot be held liable for

a Fourth [Amendment] violation unless under Monell... .” Dkt. 110 at 2n.1. But

Plaintiffs maintain that they “have demonstrated substantial factual disputes

regarding the City’s unlawful taking of their property under the Fifth Amendment.”

Id. at 4. According to Plaintiffs, therefore, “this case must proceed to trial.” Id.?

For the reasons below, Plaintiffs’ remaining claims are not viable. As such,

the action is dismissed in its entirety.

DISCUSSION

OL RECONSIDERATION STANDARD

The Court “may justifiably reconsider its previous ruling if: (1) there is an

intervening change in the controlling law; (2) new evidence not previously available

comes to light; or (3) it becomes necessary to remedy a clear error of law or to

prevent manifest injustice.” Chompupong v. City of Schenectady, No.

117CV929MADCFH, 2021 WL 1758803, at *1 (N.D.N.Y. May 4, 2021) (citing

Delaney v. Selsky, 899 F. Supp. 923, 925 (N.D.N.Y. 1995); Doe v. New York City

Dep’t of Soc. Servs., 709 F.2d 782, 789 (2d Cir. 1983)).

The “standard for granting [a motion for reconsideration] is strict, and

reconsideration will generally be denied unless the moving party can point to

controlling decisions or data that the court overlooked—matters, in other words,

that might reasonably be expected to alter the conclusion reached by the court.”

Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). A “motion to

reconsider should not be granted where the moving party seeks solely to relitigate

an issue already decided.” Id. Thus, such a motion is “not a vehicle for relitigating

old issues, presenting the case under new theories, securing a rehearing on the

1 The City then replied. Dkt. 111.

merits, or otherwise taking a ‘second bite at the apple.” Sequa Corp. v. GBJ Corp.,

156 F.3d 136, 144 (2d Cir. 1998).

Reconsideration is appropriate on this record. As such, the Court will

reconsider, in part, its prior rulings on the parties’ motions for summary judgment

(Dkt. 66, 72). And for the reasons below—namely, that Plaintiffs failed to establish

any viable municipal (or Monell) liability—Plaintiffs’ remaining claims (the Third

and Seventh claims against the City) are now dismissed.

II. MUNICIPAL LIABILITY

Under Section 1988, “a municipality may be liable for the violation of a

person’s civil rights only if the moving force behind that violation was an official

policy or custom of the municipality.” Williams v. Town Of Southington, 2000 WL

232054, at *2 (2d Cir. 2000) (citing Monell, 436 U.S. at 690-94). A “plaintiff ‘must

first prove the existence of a municipal policy or custom’ that caused [his] injuries,

and must establish a causal connection between the policy and the alleged civil

rights violation.” Jd. (quoting Vippolis v. Village of Haverstraw, 768 F.2d 40, 44 (2d

Cir. 1985), cert. denied, 480 U.S. 916 (1987)).

A “municipal policy or custom may be proved by showing that the

government officials responsible for establishing municipal policies took the actions

or made the decisions [that] caused the alleged violation of the plaintiffs civil

rights.” Id. (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84 (1986)). And

“under certain circumstances[,] a single decision by municipal policymakers may

constitute a practice or policy sufficient to establish municipal liability under

§ 1983.” Id. (citing Pembaur, 475 U.S. at 480). Indeed, “[a]bsent such a custom,

policy, or usage, a municipality cannot be held liable on a respondeat superior basis

for the tort of its employee.” Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir.

2012) (citing Monell, 486 U.S. at 691)). See also Connick v. Thompson, 563 U.S. 51,

60 (2011) (local governments “are not vicariously liable under § 1983 for their

employees’ actions”).

In this case, Magistrate Judge Foschio concluded that, under Monell,

“Plaintiffs have adduced no evidence regarding the asserted demolitions amounting

to an official policy or custom... .” Dkt. 53 at 72. He recommended, therefore, that

this Court grant summary judgment to Defendants on Plaintiffs’ Tenth claim

(“Violation of the Fourteenth Amendment Policy, Custom, and Practice of

Defendants and Failure to Train under 42 U.S.C. § 1983 Against the City of

Buffalo”). See id. at 71-72. This Court accepted and adopted that recommendation.

See Dkt. 66 at 5-6. And that conclusion remains valid.

As a result, given the absence of any “official policy or custom” that deprived

Plaintiffs of any Constitutional right, all of Plaintiffs’ Section 1983 claims against

the City are not viable. See Williams, 2000 WL 232054, at *2.

Indeed, courts in this Circuit have dismissed Section 1983 claims against

municipalities for alleged Constitutional violations for failure to satisfy Monell. For

example, in Smith v. City of Albany, No. 1:03-CV-1157, 2006 WL 839525 (N.D.N.Y.

Mar. 27, 2006), affd, 250 F. App’x 417 (2d Cir. 2007), the plaintiff “assert[ed] five

claims under 42 U.S.C. § 1983”—namely, that “his rights under the Fourth, Fifth

and Fourteenth Amendments were violated by defendants ‘under color’ of the City

of Albany ordinance[,] which authorized demolition of his property.” Id. at *8. The

Court dismissed Plaintiffs’ claims against the City, reasoning that “plaintiff has

submitted no evidence in his moving or opposition papers to establish municipal

liability in accordance with the well-established Monell standard.” Id. See also

Birdsall v. City of Hartford, 249 F. Supp. 2d 163, 174 (D. Conn. 2008) (dismissing

Section 1983 claims for constitutional violations against the City of Hartford

because the plaintiff did “not allege that there was a specific municipal policy that

was the root cause of his injuries, nor [did] he suggest that there was a custom of

constitutional abuses beyond the incident alleged in his complaint”);2 Khapesi v.

City of New York, No. 138-CV-4149 WFK, 2018 WL 3934238, at *1 (E.D.N.Y. July 30,

2018) (“to the extent Plaintiff seeks to bring a [Section 1983] claim against the City

of New York, his claim must be dismissed as Plaintiff has failed to allege facts

demonstrating that an officially adopted policy or custom of the City of New York

caused a violation of Plaintiffs federally protected rights”).

In addition, at least one other court in this Circuit has dismissed analogous

claims in the present posture. In Chompupong v. City of Schenectady, No.

117CV929MADCFH, 2021 WL 1758803 (N.D.N.Y. May 4, 2021), the court

concluded, at summary judgment, “that questions of material fact remained as to

Plaintiffs’ Fourth Amendment, Fifth Amendment, and state law claims [against the

2 The Court stated that, although it was “unclear whether [the plaintiffs] Fifth

Amendment claims [were] premised on the Due Process Clause or the Takings

Clause,” the “claims cannot be sustained” in “either case.” Jd. at 170.

defendant city], but that Plaintiffs had failed to establish Monell liability.” Id. at

*1. Upon reconsideration, the city argued that “the Court must dismiss Plaintiffs’

Fourth and Fifth Amendment claims because it found that Plaintiffs failed to plead

and prove a Monell claim against the City.” Id. The Court agreed—concluding

that, because “Monell liability does not attach and Plaintiffs have not established

that their Section 1983 claims may be brought directly against the City[,] .. .

Plaintiffs’ Fourth and Fifth Amendment claims against the City must be

dismissed.” Id. at *3. Chompupong is persuasive here.

Plaintiffs’ cases are inapposite. First, they rely on Knick v. Twp. of Scott,

Pennsylvania, 588 U.S. 180, 189 (2019), where the Supreme Court “overruled its

prior holding .. . that ‘a property owner whose property has been taken by a local

government has not suffered a violation of his Fifth Amendment rights—and thus

cannot bring a federal takings claim in federal court—until a state court has denied

his claim for just compensation under state law.” Stensrud v. Rochester Genesee

Reg'l Transportation Auth., No. 23-765, 2024 WL 2104604, at *1 (2d Cir. May 10,

2024), cert. denied, 145 S. Ct. 377 (2024) (quoting Knick, 588 U.S. at 184). Knick did

not discuss Monell or the requirements for bringing a Section 1983 claim against a

municipality. And the City here does not argue that Plaintiffs were required to

seek compensation in state court prior to bringing this lawsuit.

Plaintiffs also cite Progressive Credit Union v. City of New York, 889 F.3d 40

(2d Cir. 2018), which pre-dates Knick. Although the court there stated that

“takings claims may be asserted against local governments,” id. at 55, it did not

discuss the requirements for such claims and, ultimately, concluded that “plaintiffs’

takings claim [was] not ripe for review in federal court” because “plaintiffs [had] not

yet asked the state for compensation....” Id.

Lastly, Plaintiffs cite One Barberry Real Est. Holding, LLC v. Maturo, No.

8:17-CV-00985 (KAD), 2021 WL 4430599 (D. Conn. Sept. 27, 2021), for the

proposition that “other district courts in the Second Circuit have allowed Section

1983 takings claims against municipalities to proceed to trial.” See Dkt. 110 at 3.

Although that court ultimately denied summary judgment as to the plaintiffs

Takings Claim, it did so applying Monell and concluding that “Plaintiffs have

identified a genuine issue of material fact as to whether the [Zoning Board of

Appeals] ratified the actions of the individual Town officials.” One Barberry Real

Est. Holding, LLC, 2021 WL 4430599, at *10.

In sum, in the absence of Monell liability, Plaintiffs’ remaining Section 1983

claims against the City may not proceed.

CONCLUSION

For these reasons, the City’s motion for reconsideration is GRANTED to the

extent it seeks dismissal of Plaintiffs’ Third and Seventh claims against the City.

This action is DISMISSED—on summary judgment—in its entirety. The Clerk of

Court shall close the case.

SO ORDERED.

Dated: March 4, 2025

Buffalo, New York

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JOE i SINATRA, JR. ee

UNITED STATES DISTRICT JUDGE

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