Levin, Vodka Properties LLC v. City of Buffalo

25-762

Levin, Vodka Properties LLC v. City of Buffalo et al.

1 In the

2 United States Court of Appeals

3 For the Second Circuit

4 ________

5

6 AUGUST TERM, 2025

7

8 ARGUED: FEBRUARY 2, 2026

9 DECIDED: JUNE 18, 2026

10

11 Docket No. 25-762

12 ________

13

14 MAXIM LEVIN, VODKA PROPERTIES LLC,

15 Plaintiffs-Appellants,

16

17 v.

18

19 CITY OF BUFFALO, BYRON W. BROWN, Individually and In His

20 Capacity as the Mayor, JAMES COMERFORD, JR., Individually and In

21 His Capacity as the Commissioner of the Department of Permit &

22 Inspection Services, LOU PETRUCCI, Individually and In His Capacity

23 as the Deputy Commissioner of the Department of Permit &

24 Inspection Services, TRACY KRUG, Individually and In His Capacity

25 as an Inspector for the City of Buffalo, KEVIN COYNE, Individually

26 and In His Capacity as an Inspector for the City of Buffalo,

27 Defendants-Cross-Defendants-Appellees,

28

29 EMPIRE DISMANTLEMENT CO.,

30 Defendant-Cross-Claimant-Appellee.

31 ________

32

33 Appeal from the United States District Court

34 for the Western District of New York.

35 ________

25-762

1 Before: WALKER, PARKER, AND BIANCO, Circuit Judges.

2 ________

3 Plaintiffs-Appellants (“Plaintiffs”), Maxim Levin and Vodka

4 Properties LLC, brought this action against the City of Buffalo, certain

5 City employees, and a private demolition company following the

6 2019 emergency demolition of a residential building Plaintiffs owned

7 in Buffalo. The parties dispute whether (1) illegal drug activity on the

8 property, which culminated in a late August overdose death on it

9 where a needle was later found and (2) the building’s vacant,

10 abandoned, and structurally compromised state were sufficiently

11 established at the time to justify the City’s decision to order an

12 emergency demolition under city law.

13 On appeal, Plaintiffs challenge the district court’s grant of

14 summary judgment on four of their Section 1983 constitutional claims

15 and two additional claims under New York state law. Plaintiffs also

16 challenge the district court’s dismissal of their Section 1983

17 constitutional claims on qualified immunity grounds against

18 individual employees and officials of the City; dismissal of their

19 Section 1983 constitutional claims against a private demolition

20 company; and dismissal of their claims against the City of Buffalo for

21 lack of municipal liability.

22 For the reasons explained below, with respect to the procedural

23 due process, unlawful taking, and unreasonable seizure claims, we

24 conclude that summary judgment was unwarranted because there are

25 questions of material fact as to whether the conditions of the property

26 justified invoking the City’s emergency demolition authority, which

27 is a central issue underlying the resolution of each of those

28 constitutional claims. In addition, because of the uncontroverted

29 evidence demonstrating that Commissioner James Comerford, Jr.,

30 was the City’s final policymaker with respect to the emergency

31 demolition decision, the district court erred in granting summary

32 judgment on the municipal liability claim due to a failure to show an

33 official policy or custom. Moreover, given the disputed factual issues

34 regarding whether the circumstances were sufficient to support an

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1 emergency demolition, the district court also erred in granting

2 summary judgment to the Commissioner on the ground of qualified

3 immunity with respect to the procedural due process, unlawful

4 taking, and unreasonable seizure claims. Finally, we affirm the

5 district court’s grant of summary judgment in all other respects.

6 Accordingly, we AFFIRM in part, VACATE in part, and REMAND

7 Plaintiffs’ remaining claims to the district court for further

8 proceedings consistent with this opinion.

9 ________

10 R. ANTHONY RUPP III (Chad A. Davenport and

11 Paul D. Jager, on the brief), Rupp Pfalzgraf LLC,

12 Buffalo, NY, for Appellants.

13 ROBERT E. QUINN, City of Buffalo, Buffalo, NY, for

14 Appellees.

15 ________

16 PER CURIAM:

17 Plaintiffs-Appellants (“Plaintiffs”), Maxim Levin and Vodka

18 Properties LLC, brought this action following the 2019 emergency

19 demolition of a residential building they owned in Buffalo, New York

20 (the “Property”), by the City of Buffalo (the “City”). The Defendants

21 are set forth in the caption. The parties dispute as to whether (1)

22 illegal drug activity on the property, which culminated in a late

23 August overdose death on it where a needle was later found and (2)

24 the building’s vacant, abandoned, and structurally compromised

25 state were sufficiently established at the time to justify the City’s

26 decision to order an emergency demolition under city law.

27 Plaintiffs initially brought fourteen causes of action—(1) ten

28 42 U.S.C. § 1983 (“Section 1983”) constitutional claims against the

29 City, City Defendants, and Empire Dismantlement Company

30 (“Empire,” the private demolition company) and (2) four New York

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1 common law claims against Empire. On July 13, 2023, a magistrate

2 judge (Leslie G. Foschio, M.J.) issued a Report and Recommendation

3 on Plaintiffs’ fourteen claims. The magistrate judge recommended, in

4 relevant part, denying Plaintiffs’ summary judgment motion,

5 granting Empire’s motion for summary judgment, and granting in

6 part and denying in part the City Defendants’ motion for summary

7 judgment.

8 In particular, the magistrate judge recommended granting

9 Empire’s motion for summary judgment as to Plaintiffs’ Section 1983

10 constitutional claims after finding a “lack of state action by Empire”

11 and, accordingly, determining that Empire was a private actor not

12 susceptible to Section 1983 liability. Special App’x at 38. The

13 magistrate judge separately recommended denying Plaintiffs’ and

14 City Defendants’ motions for summary judgment as to Plaintiffs’

15 procedural due process, unlawful taking, and unreasonable seizure

16 claims. As to those claims, the magistrate judge identified disputed

17 facts regarding notice to the owner and the condition of the building,

18 which the magistrate judge found could call into question the City’s

19 decision to order its emergency demolition, and therefore precluded

20 summary judgment on those claims. See, e.g., Special App’x at 50–52.

21 The magistrate judge recommended denying the City Defendants’

22 assertion of qualified immunity because of these questions of material

23 fact. Ultimately, the magistrate judge recommended that Plaintiffs’

24 due process, unlawful taking, and unreasonable seizure claims

25 proceed against the individual City Defendants and the City.

26 On February 29, 2024, the district court (John L. Sinatra, Jr., J.)

27 accepted the magistrate judge’s recommendation in part but

28 sustained objections in part in two relevant respects. First, the district

29 court dismissed Plaintiffs’ procedural due process claim after

30 determining there was no genuine dispute as to notice. 1 Second, the

1 We note here, and discuss further below, that in granting summary

judgment on Plaintiffs’ procedural due process claim, the district

court did not address whether the condition of the building

necessitated an emergency demolition, as the magistrate judge had.

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1 district court held, contrary to the magistrate judge’s

2 recommendation, that the individual City Defendants (Brown,

3 Comerford, Petrucci, Krug, and Coyne) were entitled to summary

4 judgment on qualified immunity grounds because they acted

5 reasonably. The district court ordered that this action proceed only

6 against the City of Buffalo on Plaintiff’s unlawful taking claim and

7 reserved decision on Plaintiffs’ unreasonable seizure claim.

8 In a subsequent Decision and Order, dated April 30, 2024, the

9 district court ordered that it would allow Plaintiffs’ unreasonable

10 seizure claim to proceed against the City of Buffalo because

11 “questions of material fact” existed, specifically “whether City

12 Defendants’ invocation of the Commissioner’s emergency

13 condemnation and demolition authority to demolish the Building

14 were warranted based on the condition of the Building and

15 Property . . . .” Special App’x at 109. As a result, Plaintiffs’ unlawful

16 taking and unreasonable seizure claims against the City were

17 permitted to proceed.

18 On March 4, 2025, the district court received supplemental

19 briefing and reconsidered whether Plaintiffs’ unlawful taking and

20 unreasonable seizure claims could proceed against the City, given the

21 magistrate judge’s earlier, separate determination that Plaintiffs had

22 not sufficiently alleged municipal liability. See id. at 117 (concluding

23 that “Plaintiffs ha[d] adduced no evidence regarding the asserted

24 demolitions amounting to an official policy or custom” (quoting the

25 magistrate judge’s Report and Recommendation)). After also

26 determining that Plaintiffs failed to establish any viable municipal

27 (Monell) liability claim against the City, the district court dismissed

28 Plaintiffs’ constitutional unlawful taking and unreasonable seizure

29 claims in their entirety. See id. at 115–17, 120 (adopting the magistrate

30 judge’s finding).

Instead, the district court only discussed whether there was a genuine

dispute of material fact as to whether Plaintiffs received adequate

notice.

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1 On appeal, Plaintiffs challenge the district court’s grant of

2 summary judgment against them on four of their Section 1983 claims

3 and two additional claims under New York state law. Plaintiffs also

4 challenge the district court’s dismissal of their claims on qualified

5 immunity grounds against the individual City Defendants; dismissal

6 of their Section 1983 claims against Empire; and the ultimate dismissal

7 of their claims against the City of Buffalo for lack of municipal

8 liability.

9 For the reasons explained below, with respect to the procedural

10 due process, unlawful taking, and unreasonable seizure claims, we

11 conclude that summary judgment was unwarranted because there are

12 questions of material fact as to whether the conditions of the property

13 justified invoking the City’s emergency demolition authority, which

14 is a central issue underlying the resolution of each of those

15 constitutional claims. In addition, because of the uncontroverted

16 evidence demonstrating that Commissioner James Comerford, Jr.,

17 was the City’s final policymaker with respect to the emergency

18 demolition decision, the district court erred in granting summary

19 judgment on the municipal liability claim due to a failure to show an

20 official policy or custom. Moreover, given the disputed factual issues

21 regarding whether the circumstances were sufficient to support an

22 emergency demolition, the district court also erred in granting

23 summary judgment to the Commissioner on the ground of qualified

24 immunity with respect to the procedural due process, unlawful

25 taking, and unreasonable seizure claims. Finally, we affirm the

26 district court’s grant of summary judgment in all other respects.

27 Accordingly, we AFFIRM in part, VACATE in part, and REMAND

28 Plaintiffs’ remaining claims to the district court for further

29 proceedings consistent with this opinion.

30 DISCUSSION

31 We review the district court’s grant of summary judgment and

32 decision to dismiss de novo. Miller v. Wolpoff & Abramson, L.L.P., 321

33 F.3d 292, 300 (2d Cir. 2003). Summary judgment is appropriate when,

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1 viewing the evidence in the light most favorable to the non-moving

2 party, "there is no genuine issue as to any material fact and the

3 moving party is entitled to judgment as a matter of law.” See Nabisco,

4 Inc. v. Warner-Lambert Co., 220 F.3d 43, 45 (2d Cir. 2000); Fed. R. Civ.

5 P. 56(a).

6 I. Section 1983 Claims

7 A. Fourteenth Amendment Procedural Due Process Claim

8 Plaintiffs argue that they were deprived of procedural due

9 process in connection with the demolition of their building. A review

10 of a procedural due process claim involves a “two-step inquiry” in

11 which we must determine “(1) whether [the plaintiff] possessed a

12 liberty or property interest and, if so, (2) what process [] was due

13 before [the plaintiff] could be deprived of that interest.” Ciambrello v.

14 Cnty. of Nassau, 292 F.3d 307, 313 (2d Cir. 2002). While pre-

15 deprivation hearings are normally required before an individual’s

16 property may be taken by the government, the Supreme Court has

17 held that in emergency situations a city may satisfy procedural due

18 process by making available “some meaningful means by which to

19 assess the propriety of [its] action at some time after the initial

20 taking.” Parratt v. Taylor, 451 U.S. 527, 539 (1981), overruled on other

21 grounds, Daniels v. Williams, 474 U.S. 327 (1986); see also WWBITV, Inc.

22 v. Vill. of Rouses Point, 589 F.3d 46, 50 (2d Cir. 2009) (“Where there is

23 an emergency requiring quick action and where meaningful pre-

24 deprivation process would be impractical, the government is relieved

25 of its usual obligation to provide a hearing, as long as there is an

26 adequate procedure in place to assess the propriety of the deprivation

27 afterwards.”).

28 There is no dispute that Plaintiffs had a protected interest in the

29 property that they owned. The parties disagree, however, over

30 whether procedural due process was satisfied. The parties dispute

31 whether there was a genuine factual dispute as to the condition of the

32 Property, both as to drug use on it and as to its physical state, that

33 justified an emergency demolition without a pre-deprivation hearing,

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1 and whether Plaintiffs received constitutionally adequate notice of

2 the remedies available to them.

3 The City Defendants had broad authority to declare an

4 emergency demolition by virtue of the City Code and Charter, and in

5 particular, where a building was “deem[ed] to be an immediate threat

6 to the health, welfare and safety of the public.” Supplemental App’x

7 at 117; see id. at 119–20 (similar). As our circuit precedent recognizes,

8 the Supreme Court directs us to accord deference to the decision to

9 invoke the emergency procedure and not to engage in a hindsight

10 analysis of whether the totality of the impairment to the property

11 actually created an immediate danger to the public. See Catanzaro v.

12 Weiden, 188 F.3d 56, 62 (2d Cir. 1999) (citing Hodel v. Va. Surface Mining

13 & Reclamation Ass’n, 452 U.S. 264, 302–03 (1981)). Under that

14 deferential standard, “the due process guarantee is offended only

15 when an emergency procedure is invoked in an abusive and arbitrary

16 manner; therefore, there is no constitutional violation unless the

17 decision to invoke the emergency procedure amounts to an abuse of

18 the constitutionally afforded discretion.” Id. In Catanzaro, we

19 emphasized that we were not “suggest[ing] that the government may

20 simply avoid affording due process to citizens by arbitrarily invoking

21 emergency procedures”—rather, “where there is competent evidence

22 allowing the official to reasonably believe that an emergency does in

23 fact exist, or that affording pre[-]deprivation process would be

24 otherwise impractical, the discretionary invocation of an emergency

25 procedure results in a constitutional violation only where such

26 invocation is arbitrary or amounts to an abuse of discretion.” Id. at

27 63.

28 Defendants argue that their authority to order an emergency

29 demolition in this case derived from two conditions on the vacant

30 property that created a safety concern for the neighborhood. The

31 conditions were (1) illegal drug activity, which culminated in a late

32 August overdose death on the Property where a needle was later

33 found and (2) the building’s “vacant, abandoned, and [] structural[ly]

34 compromise[d]” state. Appellees’ Br. at 6. We conclude that there are

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1 disputed issues of material fact with respect to each part of this

2 justification that preclude summary judgment on this critical question

3 of whether the City abused its discretion in determining that an

4 emergency demolition was warranted.

5 First, while our independent review of the record reveals more

6 evidence of illegal drug activity than just the “one needle” that

7 Plaintiffs indicate, Appellants’ Brief at 41, the question is whether all

8 the evidence concerning illegal drug activity, taken together,

9 presented an “immediate threat to the health, welfare and safety of the

10 public[,]” Supplemental App’x at 117 (emphasis added). In terms of

11 evidence supporting the presence of illegal drug activity constituting

12 an immediate threat, between March 2015 and July 2019, the City of

13 Buffalo received at least seven complaints related to vagrants and

14 drug use on the Property. In August 2019, the City received a police

15 complaint about a drug overdose death on the Property. Shortly after

16 this report, investigators found a used needle on the Property. But,

17 in dispute of Defendants’ argument about the immediacy of the

18 threat, we note that approximately one month elapsed between the

19 drug overdose death and the demolition of the Property in late

20 September 2019. In further dispute of whether there was an

21 immediate threat, as the Report and Recommendation noted, “there

22 is no evidence in the record that after the overdose of a single drug

23 user at the Property, there remained any public health risk based on

24 drug use at the Property[.]” Special App’x at 50. More broadly, the

25 record is devoid of evidence regarding the City’s consideration of

26 alternative measures short of demolition that could address any

27 ongoing public safety risk created by continuing drug use on the

28 Property pending a scheduled hearing, which was only three weeks

29 away at the time of the demolition. Indeed, the Commissioner

30 testified that, if it had been brought to his attention that there was a

31 court proceeding or court hearing that was scheduled for a specific

32 property, he “would [have] wait[ed] for the hearing” as opposed to

33 moving forward with an emergency demolition. App’x at 245. In

34 short, drawing all inferences in Plaintiffs’ favor, we conclude that

35 disputed factual issues preclude summary judgment for Defendants

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1 as to whether the City’s determination that drug activity at the

2 Property warranted an emergency demolition ultimately

3 “amount[ed] to an abuse of discretion.” Catanzaro, 188 F.3d at 63.

4 The record, admittedly sparse, also presents conflicting

5 evidence about whether the building was in imminent danger of

6 collapse. Therefore, we also find that the structural integrity of the

7 building was sufficiently disputed to preclude granting summary

8 judgment as to the second part of the City’s justification for ordering

9 an emergency demolition.

10 Thus, summary judgment was inappropriate. The existence of an

11 emergency is a “material fact . . . vigorously contested by the parties”

12 because both justifications relied upon by the City remain in dispute.

13 Burtnieks v. City of New York, 716 F.2d 982, 988 (2d Cir. 1983).

14 Plaintiffs also challenge the efficacy of the notice they received

15 from the City in advance of the demolition. We hold that the notice

16 was sufficient. “[D]ue process requires only that a state take steps

17 reasonably calculated to provide actual notice, not that the notice

18 actually reach [the property owner] . . . before the government may

19 take his property.” Oneida Indian Nation of N.Y. v. Madison Cnty., 665

20 F.3d 408, 429 (2d Cir. 2011) (citation modified).

21 Defendants took reasonable steps to provide notice to Plaintiffs

22 prior to the building’s demolition. Defendants posted at the building

23 notice of the pending demolition and sent this notice via certified and

24 regular mail to the owners. The City’s efforts at notice distinguish

25 this case from those in which we found pre-deprivation notice

26 insufficient. See, e.g., WWBITV, 589 F.3d at 48 (plaintiffs learned of the

27 demolition from a friend); Burtnieks, 716 F.2d at 984 (plaintiff learned

28 about the demolition through her plumber). We therefore find no

29 dispute of material fact as to the notice provided to Plaintiffs.

30 While the district court did address the question of notice, it did

31 not address whether such notice, paired with the conditions on the

32 Property, were such that Plaintiffs’ procedural due process rights

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1 were protected absent a pre-deprivation hearing. Without knowing

2 whether the cited conditions of the Property warranted an emergency

3 demolition, an issue that must be resolved at trial given the disputed

4 factual issues discussed above, we are unable to conclude that “the

5 government [was] relieved of its usual obligation to provide a

6 hearing” and that the procedure afforded to Plaintiffs was adequate.

7 WWBITV, Inc., 589 F.3d at 50; see also Hellenic Am. Neighborhood Action

8 Comm. v. City of New York, 101 F.3d 877, 880 (2d Cir. 1996) (“When the

9 deprivation occurs in the more structured environment of established

10 state procedures, rather than random acts, the availability of

11 postdeprivation procedures will not, ipso facto, satisfy due process.”).

12 As a result, we vacate the district court’s grant of summary

13 judgment on Plaintiffs’ procedural due process claim and remand it

14 to the district court for further proceedings. 2

15 B. Fourteenth Amendment Substantive Due Process

16 We agree with the district court’s grant of summary judgment

17 for Defendants, and related denial of summary judgment for

18 Plaintiffs, on Plaintiffs’ substantive due process claim because it is

19 derivative of Plaintiffs’ more explicit constitutional claims. The

20 Supreme Court has held that, in the Section 1983 context, “[w]here a

21 particular Amendment ‘provides an explicit textual source of

22 constitutional protection’ against a particular sort of government

23 behavior, ‘that Amendment, not the more generalized notion of

24 substantive due process, must be the guide for analyzing these

25 claims.’” Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality) (citation

26 modified). The rule announced in Oliver applies here because the

2 We similarly conclude that the disputed issues of material fact on

the procedural due process claim with respect to the Commissioner’s

invocation of the emergency demolition authority also preclude

summary judgment with respect to the unlawful taking claim under

the Fifth Amendment, as well as the unreasonable seizure claim

under the Fourth Amendment.

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1 crux of Plaintiffs’ substantive due process claim is found in explicit

2 textual sources: the Fourth and Fifth Amendments.

3 As a result, we affirm the district court’s grant of summary

4 judgment on Plaintiffs’ substantive due process claim.

5 C. Plaintiffs’ Remaining Section 1983 Claims and Monell

6 Liability

7 Apart from the questions of material fact precluding summary

8 judgment on Plaintiffs’ Fifth and Fourth Amendment claims, the

9 district court granted summary judgment to the City and dismissed

10 the case after determining that Plaintiffs failed to produce evidence to

11 support a claim of municipal liability under Monell. See Monell v.

12 Dep’t of Soc. Servs., 436 U.S. 658 (1978). The district court erred in

13 doing so.

14 To establish municipal liability under Monell, a plaintiff “must

15 first prove the existence of a municipal policy or custom” that caused

16 his injuries and then “must establish a causal connection . . . between

17 the policy and the deprivation of his constitutional rights.” Vippolis v.

18 Vill. of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985), cert. denied, 480 U.S.

19 916 (1987). A municipality can face liability “where that

20 organization’s . . . policies or customs that it has sanctioned [] led to

21 an independent constitutional violation.” Segal v. City of New York,

22 459 F.3d 207, 219 (2d Cir. 2006); Monell, 436 U.S. at 694 (involving a

23 policy that was “the moving force of the constitutional violation”).

24 Indeed, a single decision by a designated policymaker may be

25 sufficient to establish the existence of municipal policy under Monell.

26 See Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986) (holding that

27 “municipal liability under § 1983 attaches where . . . a deliberate

28 choice to follow a course of action is made from among various

29 alternatives by the official or officials responsible for establishing final

30 policy with respect to the subject matter in question”); see also

31 Gronowski v. Spencer, 424 F.3d 285, 296 (2d Cir. 2005). “Where a city

32 official ‘has final authority over significant matters involving the

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1 exercise of discretion,’ his choices represent government policy.”

2 Gronowski, 424 F.3d at 296 (quoting Rookard v. Health & Hosps. Corp.,

3 710 F.2d 41, 45 (2d Cir. 1983)).

4 Plaintiffs here established that Commissioner Comerford was a

5 policymaker who had final, discretionary authority to order

6 emergency demolitions in the City of Buffalo, a “significant matter”

7 at the heart of Plaintiffs’ various constitutional deprivation claims. Id.

8 Plaintiffs’ Complaint and Objection to the magistrate judge’s Report

9 and Recommendation allege facts that sufficiently establish the

10 Commissioner as the “final policymaker” who invoked the

11 emergency demolition procedure upon Plaintiffs’ Property. See

12 App’x at 18, 47–48 (noting the Commissioner was “responsible for

13 setting, reviewing, and enforcing the policies and regulations of the

14 City of Buffalo”); 3 id. at 929–30 (describing the Commissioner as “a

15 policymaker or [with] the power to make official policy in regard to

16 demolition, and that a Constitutional violation occurred directly or

17 indirectly from his command to survive a motion for summary

18 judgment[]”).

19 Further, “[a]n allegation of policy-making authority . . .

20 requires proof of the official’s scope of employment and his role

21 within the municipal or corporate organization.” Rookard, 710 F.2d at

22 45. The Commissioner’s authority in this realm is clearly prescribed

23 under the City of Buffalo’s Code and Charter, which both parties

24 reference throughout the record. Supplemental App’x at 117, 119–20

25 (City of Buffalo Code and Charter). Defendants’ deposition

26 testimony also supports the fact that the Commissioner was granted

27 discretionary authority to make these emergency demolition

28 decisions. See, e.g., App’x at 210–11; id. at 132–33. This was sufficient

3With regard to the demolition of the Property, the Complaint states

that the Commissioner was contacted by an inspector requesting

emergency demolition, that he signed the Notice of Condemnation

with Defendant Petrucci, and that he was authorized by the Buffalo

Common Council to enter a contract for the demolition of the

Property.

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1 proof to support Plaintiffs’ claim that the Commissioner was a final

2 policymaker, thereby subjecting the City of Buffalo to Monell liability

3 for his decision to order an emergency demolition of the Property in

4 this case. As final policymaker, the Commissioner’s decision to order

5 an emergency demolition of Plaintiffs’ Property directly led to its

6 destruction and, therefore, a possible constitutional violation in the

7 form of property seizure and taking.

8 We therefore vacate the district court’s grant of summary

9 judgment to Defendants on Plaintiffs’ municipal liability claim.

10 Similarly, Plaintiffs’ Fifth Amendment unlawful taking and Fourth

11 Amendment unreasonable seizure claims against the City are

12 remanded to the district court for further consideration alongside

13 Plaintiffs’ procedural due process claim.

14 D. Liability for Plaintiffs’ Remaining Section 1983 Claims

15 The parties dispute which parties, if any, may be held liable for

16 Plaintiffs’ remaining Section 1983 claims. We agree that Empire was

17 properly excluded from Section 1983 liability because Empire is a

18 private actor, not a state actor, and its actions in this case did not

19 amount to state action. With the exception of the Commissioner, we

20 also agree with the district court’s dismissal of all claims against the

21 individual City Defendants on the grounds of qualified immunity.

22 Thus, the case may proceed only against the City, for the reasons

23 described above, and the Commissioner, for the reasons elaborated

24 on below, with respect to Plaintiffs’ remaining Section 1983 claims.

25 a. Empire

26 Section 1983 permits civil liability against persons who, acting

27 under color of state law, deprive an individual of rights, privileges, or

28 immunities secured by the Constitution and laws of the United States.

29 42 U.S.C. § 1983; see also Burtnieks, 716 F.2d at 986. For the individual

30 City Defendants and the City, with regard to the constitutional claims,

31 “there is no question that the first prerequisite is met” and that the

32 “conduct complained of [was] committed by a person acting under

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1 color of state law[.]” Burtnieks, 716 F.2d at 986. The district court

2 properly dismissed Plaintiffs’ Section 1983 claims against Empire,

3 however, because Empire acted as a private—not state—actor, and

4 thus was not liable under Section 1983.

5 Empire was a private company and therefore presumptively

6 not a state actor. A private entity, however, is not precluded from

7 being held liable as a state actor. “[A] ‘state action’ occurs where the

8 challenged action of a private party is ‘fairly attributable’ to the state.”

9 Logan v. Bennington Coll. Corp., 72 F.3d 1017, 1027 (2d Cir. 1995) (citing

10 Lugar v. Edmonson Oil Co., 457 U.S. 922, 937 (1982)). This may occur

11 when the private entity “is a state official, . . . [and] has acted together

12 with or has obtained significant aid from state officials, or because

13 [their] conduct is otherwise chargeable to the State.” Id.

14 “Characterizing a private party as a ‘state actor’ is a fact-specific

15 inquiry,” and we consider factors such as “the public function of the

16 party’s conduct, whether the private party acted under state

17 compulsion, the nexus between the party’s conduct and the state, and

18 whether the party’s conduct was jointly undertaken with the state.”

19 Id. (citing Lugar, 457 U.S. at 939).

20 We agree with the magistrate judge that “Empire’s

21 involvement was limited to the physical demolition of the [b]uilding

22 on the Property on September [30], 2019, pursuant to a contract with

23 the City that was awarded based on Empire’s submission of the

24 winning, i.e., lowest, bid for demolition.” Special App’x at 38. Empire

25 played no role in deciding whether the demolition should take place.

26 Given Empire’s limited role in executing the challenged demolition,

27 we agree with the district court’s grant of summary judgment in favor

28 of Empire on all of Plaintiffs’ Section 1983 claims.

29 b. Individual City Defendants

30 “In a § 1983 action, it is well-settled that qualified immunity

31 shields a defendant from personal liability for damages so long as his

32 conduct did not violate clearly established statutory or constitutional

33 rights of which a reasonable person would have known.” Kaluczky v.

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1 City of White Plains, 57 F.3d 202, 207 (2d Cir. 1995) (citation modified).

2 As discussed supra, at the time of the demolition, it was clearly

3 established that, absent an emergency, procedural due process under

4 the Fourteenth Amendment generally required a pre-deprivation

5 hearing before a property right could be terminated. See Hodel, 452

6 U.S. at 298–300; Parratt, 451 U.S. at 539–40. Because Plaintiffs’ Section

7 1983 claims are based on “clearly established” constitutional rights,

8 qualified immunity protects the individual City Defendants from

9 having to defend against Plaintiffs’ claims only so long as “it was

10 objectively reasonable for [them] to believe that [their] acts did not

11 violate those rights.” Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d Cir.

12 1991).

13 With respect to the Commissioner, we conclude that he is not

14 entitled to qualified immunity at the summary judgment stage

15 because there are disputed factual issues regarding whether the

16 circumstances were sufficient to constitute an emergency. These

17 factual disputes also preclude a determination as to whether that

18 decision by the Commissioner was objectively reasonable for

19 purposes of qualified immunity.

20 However, we agree with the district court that Plaintiffs failed

21 to develop an issue of material fact as to the objective reasonableness

22 of the remaining individual City Defendants given the varying roles

23 these different individuals played in gathering the relevant

24 information pertaining to the Property as compared to the

25 Commissioner’s unique role in making the ultimate decision. In other

26 words, the other individual City Defendants merely observed or

27 inspected the Property at various points in time and reported their

28 findings to the Commissioner, who then made the decision, based

29 upon all the information that had been gathered over time, that the

30 circumstances were sufficient to constitute an emergency that

31 warranted demolition without a hearing. Under these circumstances,

32 with respect the remaining individual City Defendants, it was

33 objectively reasonable for them to believe that their limited

34 participation did not violate Plaintiffs’ constitutional rights.

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1 Kaminsky, 929 F.2d at 925. Because we find their actions to be

2 objectively reasonable under those circumstances, we affirm the

3 district court’s decision to grant qualified immunity to the individual

4 City Defendants, other than the Commissioner, and to dismiss the

5 claims against them.

6 II. New York Common Law Claims

7 Finally, Plaintiffs reassert their New York common law claims

8 against Empire for negligence and trespass. We agree with the district

9 court’s grant of summary judgment for Empire on these claims.

10 Plaintiffs’ negligence claim fails because Plaintiffs “cannot

11 establish that Empire breached any duty owed to Plaintiffs as

12 required for a negligence claim[.]” App’x at 904. Plaintiffs’ trespass

13 claim also fails because Empire was “‘licensed or privileged’ to enter

14 private premises when [Empire] obtained the consent of the owner or

15 another whose relationship to the premises gives [them] authority to

16 issue such consent.” People v. Graves, 555 N.E.2d 268, 269 (N.Y. 1990).

17 Empire may avoid liability for trespass here because the City, whom

18 Empire contracted with, gave Empire permission to enter Plaintiffs’

19 land.

20 For these reasons, we affirm the district court’s grant of

21 summary judgment to Empire on Plaintiffs’ negligence and trespass

22 claims.

23 * * *

24 We have considered the remaining arguments and find them

25 without merit. For the foregoing reasons, the judgment of the district

26 court is:

27 AFFIRMED in part as to:

28 • The district court’s grant of summary judgment in favor of

29 Empire for Plaintiffs’ Section 1983 and state law claims;

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1 • The district court’s dismissal of all claims against the

2 individual City Defendants, with the exception of the

3 Commissioner, on qualified immunity grounds;

4 • The district court’s grant of summary judgment on Plaintiffs’

5 substantive due process claim;

6 VACATED in part as to:

7 • The district court’s grant of summary judgment in favor of

8 the City, and dismissal of the case in its entirety, after finding

9 no Monell liability;

10 • The district court’s grant of summary judgment in favor of

11 the Commissioner on qualified immunity grounds;

12 • The district court’s grant of summary judgment in favor of

13 the City and Commissioner on Plaintiffs’ procedural due

14 process, unlawful taking, and unreasonable seizure claims;

15 and

16 REMANDED to the district court for further proceedings consistent

17 with this opinion.

18