NRP Holdings LLC et al v. City of Buffalo et al

Filing 197

DECISION AND ORDER GRANTING Defendants the City of Buffalo, Byron W. Brown, and Demone A. Smith's 152 Motion for Summary Judgment; GRANTING the City of Buffalo Urban Renewal Agency's 165 Motion for Summary Judgment; DISMISSING the cla ims against Steven M. Casey; DENYING Plaintiffs NRP Holdings LLC and NRP Properties LLC's 177 Motion for Additional Discovery; DENYING Plaintiffs NRP Holdings LLC and NRP Properties LLC's 194 Motion for Leave to file a Sur-reply; DIRECTING the Clerk of Court to close this case. Signed by the Hon. William M. Skretny, United States District Judge on 2/27/2017. (MEAL)- CLERK TO FOLLOW UP -

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
NRP HOLDINGS LLC and
NRP PROPERTIES LLC,
Plaintiffs,
v.

DECISION AND ORDER
11-CV-472S

CITY OF BUFFALO, BYRON W. BROWN,
STEVEN M. CASEY, DEMONE A. SMITH,
CITY OF BUFFALO URBAN RENEWAL
AGENCY,
Defendants.

I. INTRODUCTION
On June 6, 2011, Plaintiffs NRP Holdings LLC and NRP Properties LLC
commenced this action against Defendants the City of Buffalo (the “City”), Mayor Byron
W. Brown, and Common Council Member Demone A. Smith (together, the “City
Defendants”), Former Deputy Mayor Steven M. Casey, and the City of Buffalo Urban
Renewal Agency (“BURA”).

Currently pending before this Court are motions for

summary judgment by the City Defendants and BURA seeking dismissal of the claims
against them. (Docket Nos. 152, 165.) Also pending are motions by Plaintiffs seeking
additional discovery and leave to file a sur-reply. For the following reasons, the motions
for summary judgment are granted and all pending claims are dismissed; Plaintiffs’
motions are denied.

1

II. BACKGROUND
A.

Factual Background 1

East Side Housing II
Plaintiffs NRP Holdings LLC and NRP Properties LLC (collectively, “NRP”) are
affiliates of the NRP Group LLC, an Ohio limited liability company that develops, builds
and manages apartments and housing across the United States. In November 2007,
NRP, together with developer Belmont Shelter Corporation (“Belmont”), 2 began working
with the City of Buffalo and BURA 3 on a project to build and manage 50 affordable
single-family homes in the Masten and Cold Springs neighborhoods on the East Side of
the City of Buffalo (“East Side Housing II”). The City had previously worked on a similar
project (“East Side Housing I”) with Belmont in which NRP was not involved. East Side
Housing II was intended to revitalize the Masten Park and Cold Springs neighborhoods
and bring revenue into the local community through the use of local subcontractors and
locally sourced materials.
1

The facts are taken from the City Defendant’s Local Rule 56 statement and NRP’s response, (see
Docket Nos. 152-2, 177-4), as well as their supporting documents. Although NRP “disputes” nearly every
fact put forth by the City Defendants, those disputes rest primarily on the framing or wording of the
statements (see, e.g., Docket No. 177-4 ¶ 1 (disputing statement because “[a]ny inference that NRP was
not the developer is incorrect”)) or the fact that they were not able to complete discovery in certain areas
(see, e.g., id. ¶ 12 (disputing statement because it “depends largely on the [Scott] Billman affidavit” and
“NRP objects that it has not had an adequate opportunity to respond to these allegations, as the current
discovery stay has prevented NRP from conducting Fed. R. Civ. P. 30(b)(6) depositions of the City,
BURA, and or Mr. Billman”)).
The City Defendants have requested that the Court not consider NRP’s response, and further requested
that the Court reject NRP’s Statement of Material Facts (filed together with its response to the City
Defendants’ Rule 56 Statement), arguing that the statement “is not in compliance with Local Rule 56, is
irrelevant to the issues in the motion for summary judgment, largely consists of arguments, not facts, and
because much of it is not supported by the cited or record evidence.” (Docket No. 192.) Particularly in
light of NRP’s stance that discovery is incomplete, this Court has considered all statements submitted.
Moreover, it draws all factual inferences and views the factual assertions in the light most favorable to
NRP as the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505,
2513, 91 L. Ed. 2d 202, 216 (1986). However, this Court notes that a nonmovant benefits from such
factual inferences “only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372,
380, 127 S. Ct. 1769, 1776, 167 L. Ed. 2d 686, 694 (2007).
2
Belmont assigned its claims to NRP.
3
BURA is the City of Buffalo’s designated delegate for urban renewal projects.

2

East Side Housing II was a complex real estate development project, which
required, among other things: (1) the transfer of 51 City-owned lots to the developers;
(2) a payment in lieu of taxes (“PILOT”) agreement between the developers, the City,
and the County of Erie; (3) a release of federal HOME Investment Partnerships
Program (“HOME”) funds; (4) a Low-Income Housing Tax Credits Regulatory
Agreement; and (5) a final HOME funds agreement. These agreements and transfers
required approvals from the federal Department of Housing and Urban Development
(“HUD”), the City Planning Board, the County of Erie, the Buffalo Fiscal Stability
Authority, BURA, and the Buffalo Common Council.
The project involved an investment by the City, as the cost to the City to build the
50 units would be an average of $32,000 per house in HOME funds. (See Docket No.
177-1, Lane Decl. Exh. D.) This cost, though not insignificant, was substantially less
than similar projects, which had averaged over $220,000 per unit in HOME funds. (Id.)
Part of the City’s investment came in the form of a tax forfeiture on the property involved
in the development through the PILOT agreement.

The PILOT agreement was

effectively a tax incentive program, to be negotiated between the City, the County, and
the developers, to defer or limit taxes paid on the properties associated with the project.
Typically, the City and County enter into an agreement to forfeit tax revenue so as to
encourage development in their jurisdiction.

Here, it would have allowed NRP to

receive a property tax exemption on the land to be developed and, in exchange, submit
payments to the City and the County according to an agreed-upon schedule. 4 Because
the PILOT agreement was a municipal contract that impacted the City and County
4

Because the property involved was City-owned, it was not tax-producing at the time of the relevant
events. Had the project been successfully completed, the property would have been returned to taxable
lots, or the City could have otherwise sold the lots to return them to taxable status.

3

budgets, their legislative bodies were required to individually and separately approve
the agreement before it came into effect. The City was also required to approve any
transfer of City-owned property. Pursuant to the City Charter, the approval of any sale,
lease, or transfer of City-owned real property must be made by formally adopted
resolution by the Common Council.

(See City Charter, § 27-13 Sale or Lease of

Property for Development or Redevelopment (“Real property or any interest therein and
appurtenances thereto belonging to or in the control of the city, necessary for . . .
development or redevelopment, . . . or for urban renewal, may be sold . . . to any
person, firm or corporation . . . when authorized by resolution of the council . . . .”).)
Accordingly, the sale of the 51 City-owned lots also required Common Council approval.
Between November 2007 and February 2008, the City, BURA, and the
developers had multiple meetings regarding East Side Housing II. NRP alleges that,
during these meetings, the City and BURA unconditionally and repeatedly promised to
enter into a PILOT agreement, provide $1,600,000 of HOME funds to assist in
construction, and transfer 51 buildable City-owned vacant lots, among other things that
would be needed to complete the project. On February 25, 2008, these promises were
communicated by a letter from Timothy Wanamaker, the Executive Director of Buffalo’s
Office of Strategic Planning and Vice President of BURA, who wrote to Belmont:
This letter is to confirm that the Buffalo Urban Renewal Agency has
earmarked $1,600,000 of the City’s HOME funds for the [ ] project that
consists of construction of fifty (50) units of single-family homes in the
Masten Park and Cold Springs neighborhoods of the City of Buffalo.
(Docket No. 152-9, Battle Decl. Exh. 12 (the “Wanamaker Letter”).) After describing the
details of the plan—including the “lease-to-own” component, the City’s promise to offer
its “usual Low-Income Housing Pilot Agreement,” and the City’s commitment to provide
4

51 City-owned vacant lots at a price of $2,000 per lot—Wanamaker noted, “This
commitment letter is only valid if the developer is successful in securing a 2008 LowIncome Housing Tax Credit allocation to complete the project.” (Id.) He concluded, “Of
course, BURA is required to meet all applicable Federal, State, and local rules and
regulations before issuance of HOME funds to eligible recipients.” (Id.) On August 20,
2008, NRP obtained the requisite low-income-housing tax credits from the New York
Division of Housing and Community Renewal (“NY DHCR”). This Court has previously
found that, because issuance of HOME funds was explicitly conditional on meeting
applicable rules and regulations, only the promises regarding the PILOT agreement and
the transfer of City-owned property were unambiguous. (See Docket No. 132 at 11-12.)
On February 26, 2008, Mr. Wanamaker sent another letter to Belmont stating
that the City had received Belmont’s application and that the Project could be “eligible”
for a PILOT Agreement.

Mr. Wanamaker explained that a PILOT Agreement was

contingent on certain future events, including Common Council approval:
The PILOT will be granted to the project upon submittal of satisfactory
evidence of funding and evidence that the project will proceed as
proposed, and is contingent upon the approval of the County of Erie, the
Buffalo Common Council and the Buffalo Fiscal Stability Authority.
(Docket No. 152-9, Battle Decl. Exh. 13.) The transfer of City-owned property was also
subject to Common Council approval under the City Charter, as noted above. NRP
alleges that, to the extent that any promises were made contingent on such approvals, it
understood, from prior experience, that those approvals were pro forma.
During his deposition in this case, Mayor Brown testified that the Wanamaker
Letter created affirmative obligations on the part of both NRP and the City. (See Docket
No. 177-1, Lane Decl. Exh. B at 228-29 (stating that the developers “could definitely feel
5

that they were receiving support from the city, that it made sense for them to continue to
move toward a project, that it made sense for them to do everything that they were
supposed to do to try to complete a project”).) Mayor Brown further demonstrated
support for the project in communications to Governor David Patterson’s Office and to
the Commissioner of the NY DHCR.
NRP alleges that, in reliance on the promises made by Defendants, it took
numerous steps toward completion of the project. In addition to obtaining low-incomehousing tax credits from the NY DHCR, NRP also incurred costs for appraisals, flood
zone

determinations,

title

searches,

pre-construction

loans

including

interest,

architecture designs, landscape architecture designs, surveys and other engineering
activities, environmental reports, market studies, legal services, development
consulting, building permits, site plans, Planning Board compliance, BURA compliance,
the federal HOME funding process, the New York State funding process, SEQR,
insurance retention, tax credit consultations, request for proposal for professional
outreach, project financing, and personnel hours. NRP estimates that its expenses and
costs related to East Side Housing II exceed $489,000.
The City also took substantial preliminary steps. It selected location sites for the
planned homes and executed a HUD Request for Release of Funds and Certification.
The Buffalo Planning Board approved NRP’s site plan, design, and elevations for the
project. BURA passed a resolution authorizing allocation of the HOME funds on March
12, 2009.

The City of Buffalo Department of Economic Development, Permit &

Inspection Services approved all necessary building permits, subject only to the

6

payment of required fees. The project was also formally approved by the Buffalo Fiscal
Stability Authority, which included Mayor Brown as its director.
The Alleged Conspiracy
The East Side Housing II project came to a halt in 2009 when Mayor Brown
declined to submit resolutions on the PILOT agreement and the transfer of City-owned
property to the Common Council.
strongly disputed.

The reasons behind Mayor Brown’s actions are

According to the City Defendants, Mayor Brown began to have

doubts about the project, in part because the housing would be rent-to-own and the site
would be scattered.

NRP argues that Mayor Brown was aware of these aspects

previously and had never expressed reluctance before. Instead, NRP contends that
East Side Housing II was derailed because Mayor Brown, Deputy Mayor Casey, and
Council Member Smith began conspiring with a political ally of Mayor Brown’s,
Reverend Richard Stenhouse, to demand a paid role for Reverend Stenhouse and his
organization, the Jeremiah Partnership, in the project. 5
Reverend Stenhouse stated in his deposition testimony that he wanted a role in
the project for the Jeremiah Partnership to ensure that local subcontractors would be
hired and that the minority hiring guidelines would be met. Specifically, he was worried
that women and “other people that met the guidelines that historically have been used
to circumvent hiring minorities” would be hired rather than “African Americans.” (See
Docket No. 177-1, Lane Decl. Exh. V at 272-75.) On March 12, 2008, Carla Kosmerl,
BURA’s former director of administration and finance, sent an email to NRP and
Belmont stating that she would be meeting with the mayor and wanted “to get

5

NRP voluntarily dismissed Reverend Stenhouse and the Jeremiah Partnership from this case on
January 13, 2012. (Docket No. 25.)

7

something signed” wherein the developers agreed to six requests concerning minorityowned and women-owned business participation, a drug policy, local hiring, and to
“[w]ork with the locally-based, not-for-profit Jeremiah Partnership” who “would like to
assist in recruiting local minority sub-contractors” and “could shadow the NRP [general
contractor] to learn some of the requirements for such a project.” (See Docket No. 1771, Lane Decl. Exh. X.) 6
Shortly thereafter, on March 30, 2009, NRP was “put on the spot” during a call
with the City when the City’s representative stated that the developers needed to “make
[S]tenhouse happy” and should inform the City in the “next 1.5 hours” whether they
intended to hire the Jeremiah Partnership. (Docket No. 177-2, Lane Decl. Exhs. AA,
BB.) Later that day, Reverend Stenhouse emailed Council Member Smith, Kosmerl,
and Belmont, offering a contract whereby he would assist with “mwbe and section
3[sic] 7 subcontractors for the fifty houses” at a cost of $30,000 as well as “an agreement
with Belmont to do management training for a year for the Jeremiah Partnership.” (Id.,
Lane Decl. Exh. BB.) Reverend Stenhouse noted that the contract and agreement
“would need to be formally signed before we will sign off.” (Id.) On April 15, 2009, Ken
Peterson (who appears to be affiliated with Reverend Stenhouse, but is not otherwise
identified) emailed a proposal to NRP for both the management program and the
workforce and business diversity assistance, the cost of which had risen to $60,000.
(Id., Lane Decl. Exh. CC.) Peterson stated that “Stenhouse is ready to place his call to
the Mayor . . . provided I can show him an executed agreement with [NRP].” (Id.)

6

NRP agreed to all requests except working with the Jeremiah Partnership.
“MWBE” likely refers to the minority-owned and women-owned business enterprises. “Section 3” likely
refers to a federal requirement designed to ensure that HUD funds invested in housing and community
development provide employment opportunities for low-income individuals.
7

8

NRP did not execute the agreements.

It alleges that, after evaluating the

possibility of hiring Reverend Stenhouse, it chose not to do so because it believed that
Reverend Stenhouse would add little value to East Side Housing II and was seeking a
no-show role. Instead, NRP issued a “Request for Proposals for Professional Outreach
Services to African-American, Minority, Local and Women-Owned Firms.” (Id., Lane
Decl. Exh. GG.) NRP received three proposals, one of which came from the Jeremiah
Partnership.

The Jeremiah Partnership set out a total budget of $80,000, which

included what NRP alleges to be “numerous and suspect budget items,” such as a
$3,600 allotment for refreshments at twelve planned meetings, a rental cost of $12,000
for those meetings (though they were to take place at locations owned by Jeremiah
Partnership), and $35,000 in administrative fees for postage, telephone, and “Jeremiah
involvement.” (Id., Lane Decl. Exh. HH.) NRP rejected the proposal in favor of a bid
prepared by the University at Buffalo, which proposed a $40,524 total budget—
approximately half the amount sought by the Jeremiah Partnership. (Id.)
NRP has submitted an affidavit from former Deputy Mayor Casey, stating that
Mayor Brown told him Reverend Stenhouse “had to be involved as the face of the
Project in the Black community” and that Mayor Brown “was tired with the out of town
white developers handling all of these projects.” (Docket No. 177-5, Casey Aff. at ¶ 5.)
Steven Weiss, who acted as NRP’s outside legal counsel on the project, also submitted
a declaration stating that when he explained to Mayor Brown that NRP regularly
engaged local entities such as Reverend Stenhouse’s to perform community outreach
services, but intended to select such an entity by competitive bid, Mayor Brown
indicated that he did not care as long as NRP “hired ‘the right company,’” which Weiss

9

understood to be Reverend Stenhouse or his affiliates. (Docket No. 184, Weiss Decl. at
¶ 6.) Weiss stated that, in another conversation, “Mayor Brown made a statement to the
effect that NRP needed to ‘Make Stenhouse happy or the deal will not go through’” and
that he was “‘Sick of seeing those fucking white developers on the East Side with no
black faces represented.’” (Id. at ¶ 7.) When Weiss informed Mayor Brown that NRP
would not be retaining Reverend Stenhouse for community outreach, Mayor Brown
stated “‘I told you what you had to do and you hired the wrong company.’” (Id. at ¶ 8.)
Aaron Pechota, Vice President of Development for NRP Investments Corporation, an
affiliate of NRP, stated in a declaration that he believed “the Mayor was simply seeking
a payoff of a political ally—a pay-to-play demand that required NRP . . . to retain Rev.
Stenhouse.” (Docket No. 177-6, Pechota Decl. at ¶ 15.)
Indeed, NRP alleges that, but for their initial refusal to sign the agreements with
Reverend Stenhouse, the resolutions for the PILOT agreement and transfer of the City
lots would have been introduced at a Common Council meeting as early as April 28,
2009. (See Docket No. 177-2, Lane Decl. Exh. EE (April 28, 2009 email stating that
NRP “knows what to do, will do it and Rev. Stenhouse will call Mayor should that
contract be signed this AM.

IF [sic] that happens, presumably the file could be

introduced for passage today at Council. If not today, the tax credits will be lost by
month’s end”).
The Mayor generally has discretion as to which proposed resolutions are sent to
the Common Council for a vote, and additional discretion to veto resolutions approved
by the Council. The Mayor never introduced the resolution for a PILOT agreement on
East Side Housing II to the Common Council, and the Common Council therefore never

10

voted to approve or disapprove the agreement. The Mayor also never introduced the
resolution for sale of the 51 City-owned lots, and the Common Council therefore never
voted to approve or disapprove the transfer. Mayor Brown stated during his depositions
that he was “not aware” of any instances where similar resolutions were not approved
by the Common Council. (Docket No. 177-1, Lane Decl. Exh. B at 131.) NRP contends
that, had the resolutions been introduced, Common Council approval was not in doubt.
B.

Procedural Background
Defendants have previously challenged the sufficiency of Plaintiffs’ pleadings,

and familiarity with this Court’s prior orders is assumed. In July of 2012, this Court
dismissed several of NRP’s claims but found that, based on the arguments raised, the
claims under the doctrine of promissory estoppel and under the Racketeer Influenced
and Corrupt Organizations Act (commonly known as “RICO”) survived Defendants’
motion to dismiss. (See Docket No. 43.) This Court also granted NRP leave to file its
Second Amended Complaint, adding BURA as a defendant. (Id.) BURA moved to
dismiss the claims against it and, in September 2013, this Court denied the motion with
respect to NRP’s promissory estoppel claim, but otherwise granted the motion with
respect to Counts I, III, and V, which are the same claims that this Court previously
dismissed as against the other defendants in July 2012.

(See Docket No. 68.)

Defendants then filed motions for judgment on the pleadings pursuant to Federal Rule
of Civil Procedure 12(c). In December 2015, those motions were largely denied. (See
Docket No. 132.)
Following Defendants’ earlier motions, two claims remained:

a RICO claim

against Mayor Brown, Deputy Mayor Casey, and Council Member Smith, and a

11

promissory estoppel claim against all Defendants. Per the Court’s December 28, 2015
order, the promissory estoppel claim was limited to two “promises” in the Wanamaker
Letter, specifically that the City would enter into a PILOT agreement with NRP and that
it would transfer 51 city-owned lots to NRP. (See id.) The City Defendants and BURA
argue that they are entitled to summary judgment dismissing the remaining claims. The
present motions raise new arguments, which focus on the City’s special status as a
government entity and the other Defendants’ status as agents and employees of a
governmental entity. They contend that the RICO claims must be dismissed because
the individual defendants are immune from civil liability. They further contend that the
promissory estoppel claim must be dismissed because estoppel is generally unavailable
against municipal defendants.

BURA’s motion incorporates the City Defendants’

arguments.
III. DISCUSSION
“A motion for summary judgment may properly be granted . . . only where there is
no genuine issue of material fact to be tried, and the facts as to which there is no such
issue warrant the entry of judgment for the moving party as a matter of law.” Kaytor v.
Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010). A court’s function on a summary
judgment motion “is not to resolve disputed questions of fact but only to determine
whether, as to any material issue, a genuine factual dispute exists.” Id. (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)).
“A dispute regarding a material fact is genuine ‘if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.’” Weinstock v. Columbia Univ., 224

12

F.3d 33, 41 (2d Cir. 2003) cert. denied, 540 U.S. 811 (2003) (quoting Anderson, 477
U.S. at 248).
A.

RICO
NRP’s RICO claim arises from allegedly corrupt conduct by Mayor Brown,

Council Member Smith, and Deputy Mayor Casey8 that “killed” East Side Housing II
before it could be completed. Mayor Brown and Council Member Smith contend that,
because the conduct was part of their legislative duties, they are immune from civil
liability and the RICO claims against them must be dismissed. 9 NRP and the City
Defendants identify two acts that this Court must examine to determine whether
immunity is appropriate: Mayor Brown’s failure to introduce resolutions for a vote before
the Common Council on (1) the PILOT agreement and (2) the sale of 51 city lots. 10
It is well-established that federal, state, and local legislators are entitled to
absolute immunity from civil liability for their legislative activities. Bogan v. Scott–Harris,
523 U.S. 44, 118 S. Ct. 966, 140 L. Ed. 2d 79 (1998); see also Harhay v. Town of
Ellington Bd. of Educ., 323 F.3d 206, 210 (2d Cir. 2003) (“Legislators are entitled to
8

RICO claims may not be brought against the City, nor against a city employee in his or her official
capacity. See Naples v. Stefanelli, 972 F. Supp. 2d 373, 389 (E.D.N.Y. 2013). NRP clarifies in its
opposition that the RICO claim is directed at Mayor Brown, Council Member Smith, and Deputy Mayor
Casey solely in their individual capacities. (See Docket No. 179, Opp. to Motion for Summary Judgment,
at 11.)
9
Mayor Brown and Council Member Smith also claim qualified immunity as grounds for dismissal of the
RICO claim. Because this Court finds legislative immunity to be applicable, it need not address their
other arguments. See Mangiafico v. Blumenthal, 471 F.3d 391, 394 (2d Cir. 2006) (noting that legislative
immunity “‘defeats a suit at the outset’” (quoting Imbler v. Pachtman, 424 U.S. 409, 419 n. 13, 96 S. Ct.
984, 989, 47 L. Ed. 2d 128 (1976))).
10
NRP restricts its argument to these two acts, but states in a footnote that it “alleges additional facts” in
other filings, which “further show that legislative immunity is not proper here.” (See Docket No. 179, Opp.
to Motion for Summary Judgment, at 4 n. 8.) NRP does not specify which “additional facts” support its
RICO claim, and instead cites generally to its Amended Complaint, Second Amended Complaint, and the
statement of facts filed within its opposition papers. (Id.) Having reviewed these filings, this Court finds
that, to the extent they provide additional allegations of conduct in violation of RICO, such allegations
relate to Mayor Brown, Council Member Smith, and Deputy Mayor Casey’s motive for “killing” the project.
As further discussed below, the alleged motive, even if such a motive is corrupt or otherwise criminal, is
immaterial in determining the applicability of legislative immunity. See infra.

13

absolute immunity from civil liability for their legislative activities.”).

This immunity

attaches to all legislative actions, even if taken by members of an executive branch of
government.

Id. at 54-55 (internal quotation marks omitted).

In this regard, the

Supreme Court has held that officials outside of the legislative branch—like Mayor
Brown and Deputy Mayor Casey—are entitled to legislative immunity when they perform
legislative functions, such as introducing legislation or signing it into law. See id. at 55.
Officials are not immune from liability for administrative acts or for their conduct
in the enforcement of existing laws, ordinances, or regulations. State Emps. Bargaining
Agent Coal. v. Rowland, 494 F.3d 71, 83-84 (2d Cir. 2007) (legislative immunity does
not apply to enforcement activities); Harhay, 323 F.3d at 211 (public officials not entitled
to legislative immunity for acts that were “administrative, not legislative, in nature” in that
they did not implicate “the kind of broad, prospective policymaking that is characteristic
of legislative action”); Jessen v. Town of Eastchester, 114 F.3d 7, 8 (2d Cir. 1997)
(challenged determination “was an administrative act that legislative immunity does not
protect”). NRP contends that legislative immunity is not applicable in this case because
the acts at issue—Mayor Brown’s failure to introduce resolutions on the PILOT
agreement and the sale of the City-owned lots to the Common Council—were
administrative in nature.
“Under the Supreme Court’s functional test of absolute legislative immunity,
whether immunity attaches turns not on the official’s identity, or even on the official’s
motive or intent, but on the nature of the act in question.” See, e.g., Almonte v. City of
Long Beach, 478 F.3d 100, 106 (2d Cir. 2007). More specifically, legislative immunity
shields an official from liability if the act in question was undertaken “‘in the sphere of

14

legitimate legislative activity,’” and is the sort of “broad, prospective policymaking that is
characteristic of legislative action.” Harhay, 323 F.3d at 210-11 (quoting Bogan, 523
U.S. at 54). In determining whether an act, or a course of conduct, is within the “sphere
of legitimate legislative activity,” two factors are relevant:
First, it is relevant whether the defendants’ actions were legislative “in
form,” i.e., whether they were “integral steps in the legislative process.”
Second, it may also be relevant whether defendants’ actions were
legislative “in substance,” i.e., whether the actions “bore all the hallmarks
of traditional legislation,” including whether they “reflected . . .
discretionary, policymaking decision[s] implicating the budgetary priorities
of the [government] and the services the [government] provides to its
constituents.”
Rowland, 494 F.3d at 89 (alterations and emphasis in original) (citation omitted)
(quoting Bogan, 523 U.S. at 55-56).
With respect to whether the acts were procedurally legislative, the introduction of
a resolution for a vote, or the choice not to introduce such a resolution, is legislative “in
form” because it is an “integral step[ ] in the legislative process.” 11 See Bogan, 523 U.S.
at 55-56; Dorsett v. County of Nassau, No. 11-CV-5748, 2013 WL 272796 at *12
(E.D.N.Y. Jan. 24, 2013) (holding that decision of when to place a settlement agreement
on legislative agenda was a “quintessentially legislative function” and an “integral step[ ]
in the legislative process”); Ne. Land Dev., LLC v. City of Scranton, 561 F. App’x 135,
138 (3d Cir. 2014) (no dispute that city council’s decision to table a resolution
authorizing proposed development was legislative in form). Even looking outside the
resolutions, including the alleged communications with Reverend Stenhouse,
“legislative immunity is not limited to the casting of a vote on a resolution or bill; it covers
11

NRP argues that the conduct was not procedurally legislative because the resolutions on the PILOT
agreement and the sale of City lots were not “legislation.” (See Docket No. 179, Opp. to Motion for
Summary Judgment, at 8.) This Court addresses that argument in its analysis as whether the acts were
legislative in substance.

15

all aspects of the legislative process, including the discussions held and alliances struck
regarding a legislative matter in anticipation of a formal vote.” Almonte, 478 F.3d at
107; see also Baraka v. McGreevey, 481 F.3d 187, 196 (3d Cir. 2007) (“activities by
legislators that directly affect drafting, introducing, debating, passing or rejecting
legislation, are ‘an integral part of the deliberative and communicative processes,’ and
are properly characterized as legislative, not political patronage”) (quoting United States
v. Brewster, 408 U.S. 501, 512, 92 S. Ct. 2531, 33 L. Ed. 2d 507 (1972)). Accordingly,
this Court finds that the conduct at issue is procedurally legislative as set forth by the
Supreme Court in Bogan.
Under Bogan, it is also relevant that an act is substantively legislative, as not all
procedurally legislative official actions fall under that category.

For example, the

Second Circuit has found conduct that superficially appeared legislative (e.g., a vote on
an employment decision) was in fact administrative where officials “did not engage in
the kind of broad, prospective policymaking that is characteristic of legislative action,”
and their decision instead “was only directed to [a specific individual’s] situation and did
not implicate any [official] policy.” Harhay, 323 F.3d at 211. Thus, the discretionary
firing of an individual or group of employees, “even if undertaken by public officials who
otherwise are entitled to immunity,” would not be considered substantively legislative
and therefore immune “because such decisionmaking is no different in substance from
that which is enjoyed by other actors.” Id. at 210-11. However, the “elimination of a
class of jobs” would be deemed legislative, provided that the act was undertaken “for
budgetary or policy reasons.” Id. at 211 (“To reiterate, it is the nature of the act that we
examine to determine whether legislative immunity applies.”).

16

Similarly, the enactment or amendment of a zoning law is ordinarily a legislative
activity. See Anderson Grp., LLC v. City of Saratoga Springs, 557 F. Supp. 2d 332, 344
(N.D.N.Y. 2008), aff’d in part, 336 F. App’x 21 (2d Cir. 2009). But the execution of those
laws, including the issuance of a permit under a law already in place, is generally not
found to be immune. Id. at 345 (“action taken on the special use permit by the Board
was administrative in nature”). In Anderson, the court found legislative immunity for
officials who had approved a “downzoning” ordinance that, although it impacted most
significantly on a single property-owner, was consistent with a greater land use policy
for the City and “necessarily impact[ed] on the public services the City must provide, the
character of the City, tax revenues and expenditures, et cetera.” Id. at 344. However,
the Court denied immunity for official conduct with respect to the application for a
permit, noting that although “the ultimate disposition of the plaintiffs’ special use permit
application had implications for the public at large[, . . . the] action taken on the
application was not the sort of formal, quintessentially legislative activity that legislative
immunity was intended to cover.” Id. at 345.
NRP contends that the resolutions for the PILOT agreement and the sale of City
lots were analogous to the permit application in Anderson or the employment decision in
Harhay: administrative in nature and thus ineligible for legislative immunity. This Court
disagrees. First, unlike the power to make a discretionary employment decision, which
“is no different in substance from that which is enjoyed by other actors,” see Harhay,
323 F.3d at 211, the ability to forego tax revenue or sell City property is a privilege held
only by the City and its officials. Second, both the implementation of a tax incentive
scheme like the PILOT agreement and the sale of City-owned property are

17

“discretionary, policymaking decision[s] implicating the budgetary priorities of the
[government] and the services the [government] provides to its constituents.”

See

Rowland, 494 F.3d at 89 (quoting Bogan, 523 U.S. at 55). Documents cited by NRP
state that East Side Housing II—though more cost-effective than similar prior
developments—would nevertheless have required approximately $1.6 million in Citycontrolled HOME funds and involved a significant sale of City-owned, buildable lots.
Third, the fact that these resolutions impacted City revenues, City property, and City
policy demonstrates that this was not simply the implementation or enforcement of an
already existing law, and distinguishes this case from others where a developer has
successfully defeated a defense of legislative immunity. See, e.g., Franklin Bldg. Corp.
v. City of Ocean City, 946 F. Supp. 1161, 1171 (D.N.J. 1996) (finding no legislative
immunity on failure to adopt resolution where the court was “convinced that the decision
to adopt a resolution of need, the sole purpose of which is to allow a single developer to
seek state-guaranteed financing for a single project, does not implicate the allocation of
city resources or affect broad questions of public policy”).
As the plaintiffs did in Anderson, NRP also argues that the impact of the actions
is the salient issue, specifically, “whether the challenged action targeted a specific
individual, as opposed to the community at large.” Anderson, 557 F. Supp. 2d at 342
(citing Orange Lake Assocs., Inc. v. Kirkpatrick, 21 F.3d 1214 (2d Cir. 1994)). The
Court in Anderson, citing Bogan, found that the impact analysis no longer “remained in
untempered force,” and relied instead on post-Bogan precedent, noting that “while the
Supreme Court did not overrule the Orange Lake principle that legislative immunity is
not available for acts which impact solely on individuals, it did take an extremely

18

restrictive view of what constitutes such individual impact when the challenged action is
otherwise legislative and implicates larger policy concerns.” Id.
This impact analysis is also addressed, under similar facts, in Northeast Land
Development, LLC v. City of Scranton, No. 3:08CV290, 2008 WL 5051405 (M.D. Pa.
Nov. 21, 2008) (“Northeast I”) and Northeast Land Development, LLC v. City of
Scranton, 946 F. Supp. 2d 376 (M.D. Pa. 2013) (“Northeast II”), aff’d, 561 F. App’x 135
(3d Cir. 2014). In Northeast I, developers brought suit against the City of Scranton and
several city council members after the city council tabled a vote on a development
agreement. That agreement, similar to the PILOT agreement, involved tax incentives
for the developer, and would have affected the community with respect to business
development and housing availability. Northeast II, 946 F. Supp. 2d at 389 n. 2. The
individual council members were dismissed with legislative immunity after minimal
discussion. Northeast I, 2008 WL 5051405, at *5 (“Since voting on a development
plan—or choosing not to vote on that plan—is the sort of act that the Supreme Court
has found in form, quintessentially legislative, this court finds that the individual
defendants are absolutely immune from all claims against them in this case.” (internal
quotation omitted)).

The court later examined the actions in greater depth when

analyzing a challenge to plaintiff’s procedural due process claim, concluding that the
developer was not deprived of procedural due process because the city council’s
actions were legislative in nature and the protections of procedural due process do not
extend to legislative actions. Northeast II, 946 F. Supp. 2d at 386.
Similar to NRP, the developer in Northeast II contended that tabling a vote on the
project was an act “targeted” at them and was “therefore too narrowly focused to

19

constitute legislative activity.” Id. at 388. The court noted that a legislative act is one
that “produce[s] policies that at least approximate a fair and equitable distribution of
social resources and obligations” and that the impact of a rule on more than a few
people is a substantial factor, though not dispositive, weighing in favor of finding the rule
or action to be legislative. Id. at 386. After reviewing the development agreement in
total, and its impact on the community, the court found the Scranton city council’s
decision to table the development agreement to be legislative because the policy
considerations related to the development affected the entire community with regard to
taxes, standards of living, and business development, and the agreement implicated the
property rights of individual neighbors surrounding the project. Id. at 390. Thus, even if
the decision to table approval of the development agreement was “engendered by
concern over [the developer’s] activities” and directed at the developer alone, “the City
Council’s decision affected the entire community.” Id. at 391.
Accordingly, even under the “impact” analysis, the acts at issue must be
considered legislative in nature. East Side Housing II was a large-scale community
initiative that impacted the entire community in Buffalo. Although “killing” the project
may have been felt keenly by NRP, its passage (or not) also impacted the community at
large, including tax revenues, standards of living, and housing policy.

And, as

discussed above, the resolutions would also have impacted the City itself, both with
respect to the forfeit of tax revenue under the PILOT agreement as well as the strategic
and budgetary policy underlying the disposition of city-owned property.
Finally, NRP argues that the alleged conduct at issue cannot be subject to
legislative immunity because it was corrupt, and corrupt actions are not immune. “It has

20

been well-settled since the Supreme Court’s decision in Bogan that courts may not
consider a defendant’s motives when assessing the legislative nature vel non of his
actions.” Rowland, 494 F.3d at 90 (citing Bogan, 523 U.S. at 54). The Supreme Court
has concluded that the relevant question is “whether, stripped of all considerations of
intent and motive, petitioner’s actions were legislative.” Bogan, 523 U.S. at 55; see also
Bernard v. County of Suffolk, 356 F.3d 495 (2d Cir. 2004) (“unworthy purpose cannot
defeat absolute legislative immunity as long as the challenged conduct is even arguably
within delegated legislative powers and does not usurp the role of other branches of
government” (internal quotation omitted); S. Lyme Prop. Owners Assoc. v. Town of Old
Lyme, 539 F. Supp. 2d 547, 559 (D. Conn. 2008) (“The enforcement policies may have
been flawed, and the Defendant [municipal legislators] may have acted in bad faith, as
is alleged by Plaintiffs, but legislative immunity is absolute and does not depend on
these considerations.”).
Legislative immunity has been found to bar civil liability even where an official
admitted to corrupt conduct.

In Chappell v. Robbins, the court considered a claim

against a California state senator who admitted to taking bribes from the president of an
insurance company in exchange for legislative activity aimed at helping that company.
73 F.3d 918, 920 (9th Cir. 1996). The senator moved to dismiss the RICO claims,
asserting that he was entitled to absolute legislative immunity, and the Ninth Circuit
agreed, holding that his “efforts in sponsoring and pushing for passage of legislation
concerning statewide insurance regulation fall squarely within the class of legislative
acts. . . . ‘The claim of an unworthy purpose does not destroy the privilege.’” Id. at 921
(quoting Tenney v. Brandhove, 341 U.S. 367, 377, 71 S. Ct. 783, 788, 95 L. Ed. 1019

21

(1951)); see also Thillens, Inc. v. Cmty. Currency Exch. Ass’n of Illinois, Inc., 729 F.2d
1128, 1130 (7th Cir. 1984) (state legislators entitled to legislative immunity in spite of
bribery allegations).
In Empress Casino Joliet Corporation v. Blagojevich, the Seventh Circuit
dismissed claims against former Illinois governor Rod Blagojevich, finding that he was
legislatively immune from civil RICO liability despite “some factual overlap with [his]
federal prosecution . . . now awaiting retrial on various criminal counts.” 638 F.3d 519,
522 (7th Cir.), reh’g en banc granted in part, opinion vacated in part sub nom. Empress
Casino Joliet Corp. v. Balmoral Racing Club, Inc., 649 F.3d 799 (7th Cir. 2011), and on
reh’g sub nom. Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 651 F.3d
722 (7th Cir. 2011). In his dissent from that opinion, Judge Posner noted: “It is true that
the federal common law of legislative immunity for state officials, since it is an immunity
from civil suits, does not bar criminal actions, while barring civil actions even if based on
charges of criminal misconduct.” Id. at 543 (dissent, emphasis omitted). See also
Romero-Barcelo v. Hernandez-Agosto, 75 F.3d 23, 30 (1st Cir. 1996) (noting that
legislative immunity shields officials from civil liability for allegedly criminal conduct, but
“does not necessarily immunize the legislator or his aide from federal criminal
prosecution”).

“Such is the nature of absolute immunity, which is—in a word—

absolute.” Rangel v. Boehner, 785 F.3d 19, 24 (D.C. Cir. 2015), cert. denied, 136 S. Ct.
218, 193 L. Ed. 2d 131 (2015) (noting, in the context of the Speech or Debate Clause,
that “legislative conduct” is immune even if alleged to be illegal) (citing Bogan, 523 U.S.
at 54-55 (“The privilege of absolute immunity would be of little value if legislators could

22

be subjected to the cost and inconvenience and distractions of a trial upon a conclusion
of the pleader.” (internal punctuation omitted))). 12
Determination of whether there existed a pay-for-play scheme, or whether the
decision to “kill” East Side Housing II was the result of misconduct by Mayor Brown,
would require this Court “to inquire into the motives of legislators,” which the Supreme
Court has found “is not consonant with our scheme of government.” Bogan, 523 U.S. at
55 (quoting Tenney, 341 U.S. at 377); see also Blagojevich, 638 F.3d at 529 (“Even
when the plaintiff’s claim is directed primarily at illegal conduct by public officials,
immunity attaches if the claim requires ‘proof of a legislative act or the motives or
purposes underlying such an act.’” (quoting Thillens, 729 F.2d at 1131)).

Thus,

assuming all of NRP’s allegations of corruption to be true, indeed, assuming that Mayor
Brown and Council Member Smith had admitted to “unworthy” or even criminal conduct,
the actions at issue would nevertheless be immune from civil liability.
Because the decision not to bring the resolutions up for vote was procedurally
legislative and substantively “reflected a discretionary, policymaking decision implicating
the budgetary priorities” of the City and the services the City provides to its constituents,
see Bogan, 523 U.S. at 55-56, the conduct at issue was legislative in nature. And,
because legislative immunity is absolute, this Court has no discretion to evaluate the
motives behind that conduct, when assessing civil liability for Mayor Brown and Council
Member Smith’s legislative acts. Deputy Mayor Casey has not moved to dismiss the
RICO claim against him. However, having found that legislative immunity precludes the

12

NRP cites two cases where legislative immunity did not bar a criminal prosecution. (See Docket No.
179, Opp. to Motion for Summary Judgment, at 9-10 (citing Brewster, 408 U.S. 501 and United States v.
Menendez, 831 F.3d 155, 166 (3d Cir. 2016)). As noted, legislative immunity is an absolute defense only
with respect to civil, not criminal, liability.

23

RICO claims against Mayor Brown and Council Member Smith, and that Deputy Mayor
Casey is alleged only to have participated in the same conduct attributed to the other
defendants, this Court finds sua sponte that Deputy Mayor Casey is also immune.
Accordingly, the RICO claim is dismissed. 13
B.

Promissory Estoppel
The City Defendants and BURA also contend that NRP’s promissory estoppel

claim must be dismissed. Promissory estoppel is established by showing “(1) a promise
that is sufficiently clear and unambiguous; (2) reasonable reliance on the promise by a
party; and (3) injury caused by the reliance.” MatlinPatterson ATA Holdings LLC v. Fed.
Express Corp., 87 A.D.3d 836, 841-42, 929 N.Y.S.2d 571 (1st Dep’t 2011); see also
New York City Health & Hosps. Corp. v. St. Barnabas Hosp., 10 A.D.3d 489, 491, 782
N.Y.S.2d 12 (1st Dep’t 2004). This Court previously found, in its December 28, 2015
Decision and Order, two of the “promises” in the Wanamaker Letter to be unambiguous
on their face: (1) the promise to extend a low-income PILOT agreement and (2) the
promise to sell 51 City-owned buildable vacant lots. 14 (See Docket No. 132 at 12.) This
Court also rejected the City Defendants’ argument that any reliance on these
statements was unreasonable because their fulfillment was contingent on the approval
of the City’s Common Council. (Id. at 12-13.)
The City Defendants now argue that, even if the promises were unambiguous,
and even if NRP’s reliance was reasonable, the claim must still be dismissed because a
13

NRP argues that Mayor Brown and Council Member Smith waived immunity until the completion of
discovery by failing to assert immunity earlier in this litigation. As discussed below, there is no basis for
further fact discovery, as there are no material issues of disputed fact. Further, the City Defendants
raised absolute immunity as an affirmative defense in their Answer. (See Docket Nos. 46 ¶ 177, 47 ¶
177.)
14
NRP states that these promises were also “made at various times” outside the Wanamaker Letter
“without contingencies.” (See Docket No. 179, Opp. to Motion for Summary Judgment, at 16.)

24

municipality cannot be bound by the promise of an official who lacked authority to make
such a promise.

Although this argument appears similar to the reliance argument

already rejected by this Court, it is critically different, because it relies on the City and
BURA’s special status as government entities and is grounded in the New York Court of
Appeals rule that governmental agencies are rarely subject to estoppel:
Generally, governmental agencies are not subject to the defense of
estoppel for two reasons. First, the doctrine is not applied against the
government, as a matter of policy, because to do so could easily result in
large scale public fraud. As stated long ago by the United States
Supreme Court, “It is better that an individual should now and then suffer
by [governmental] mistakes, than to introduce a rule against an abuse, of
which, by improper collusions, it would be very difficult for the public to
protect itself.” The second, and more fundamental, reason why estoppel
is not generally permitted against the government is that to do so may
violate the doctrine of separation of powers.
E.F.S. Ventures Corp. v. Foster, 71 N.Y.2d 359, 370, 520 N.E.2d 1345 (N.Y. 1988)
(alterations in original) (quoting Lee v. Munroe, 11 U.S. 366, 370, 3 L. Ed. 373 (1813)).
Therefore, “[e]stoppel can be invoked against a municipality or municipal agency only in
the rarest cases.” Casa Wales Hous. Dev. Fund Corp. v. City of New York, 129 A.D.3d
451, 451, 11 N.Y.S.3d 31 (1st Dep’t 2015) (internal citations and quotation marks
omitted); see also Nowinski v. City of New York, 189 A.D.2d 674, 675, 592 N.Y.S.2d
369 (1st Dep’t 1993) (This exception “is to be invoked sparingly and only under
exceptional circumstances.”).
There is no genuine dispute that the promises at issue could be performed only
after approval by the Common Council and the Mayor. Although the promises in the
Wanamaker Letter do not state this as a condition, the City Charter makes clear that
Common Council approval was necessary for the sale of City-owned property. There is
also no dispute that the PILOT agreement, because it would have been a municipal
25

contract between the City, the County of Erie, and the developers, also required
approval by both the Common Council and the County.

Therefore, because those

promises were, by law, conditioned on legislative approval, neither BURA, nor any other
Defendant or City agent, had authority to make them unconditionally. “[W]here there is
a lack of authority on the part of agents of a municipal corporation to create a liability,
except by compliance with well-established regulations, no liability can result unless the
prescribed procedure is complied with and followed.” Henry Modell & Co. v. City of
N.Y., 159 A.D.2d 354, 355, 552 N.Y.S.2d 632 (1st Dep’t 1990) (quotation omitted); see
also Holdman v. Office of Court Admin., 38 Misc. 3d 1219(A), 967 N.Y.S.2d 867 (N.Y.
Ct. Cl. 2012), aff’d, 118 A.D.3d 447, 987 N.Y.S.2d 363 (1st Dep’t 2014) (“incorrect
information dispensed by a governmental entity . . . , at variance with a given
statutory/regulatory scheme” cannot “be converted into an enforceable promise” without
“undermin[ing], if not eviscerate[ing], not only the Court of Appeals’ holdings on
governmental estoppel, but those on immunity as well”).
Moreover, “New York, for policy reasons, choose[s] to place the risk of loss on
parties dealing with municipal corporations. Those dealing with officers or agents of
municipal corporations must at their peril see to it that such officers or agents are acting
within their authority.” City of Zanesville, Ohio v. Mohawk Data Scis. Corp., 97 A.D.2d
64, 66, 468 N.Y.S.2d 271 (4th Dep’t 1983) (citations omitted); see also Casa Wales,
129 A.D.3d at 451 (“those dealing with municipal agents must ascertain the extent of
the agents’ authority, or else proceed at their own risk”). Even if NRP was not aware of
the requirement that the alleged promises were conditional on resolutions approved by
the Common Council, it was “chargeable with knowledge of the statutes which regulate

26

its contracting powers and is bound by them.” Parsa v. State, 64 N.Y.2d 143, 147, 474
N.E.2d 235 (N.Y. 1984). Thus, to the extent that NRP “presume[d] that the persons with
whom [it was] dealing [were] acting within the scope of their authority,” it did so “solely
at [its own] peril . . . and, since the extent of that authority is a matter of public record,
there is a conclusive presumption that [NRP was] aware of it.” Walentas v. New York
City Dep’t of Ports, 167 A.D.2d 211, 212, 561 N.Y.S.2d 718 (1st Dep’t 1990).
The City Defendants rely on a recent state court decision, Michael R. Gianatasio,
PE, P.C. v. City of New York, 53 Misc. 3d 757, 37 N.Y.S.3d 828 (N.Y. Sup. Ct. 2016), in
support of their arguments. In Gianatasio, a city agency by-passed competitive bidding
regulations and entered into illegal building contracts for construction of a youth center
with the plaintiff contractor. Id. at 760. Although the plaintiff substantially completed
construction of the youth center, and although there was no complaint about the quality
of the work, the defendant city nevertheless refused to pay plaintiff on the grounds that
the contracts were illegal and therefore unenforceable. Id. The court found in favor of
the city, noting that “where there is a lack of authority on the part of agents of a
municipal corporation to create a liability, except by compliance with well-established
regulations, no liability can result unless the prescribed procedure is complied with and
followed.” Id. at 769 (quoting Henry Modell & Co., 159 A.D.2d at 355); see also Casa
Wales, 129 A.D.3d at 451 (“The courts of this state have long held that no implied
contract to pay for benefits furnished by a person under an agreement which is invalid
because it fails to comply with statutory restrictions and inhibitions can create an
obligation or liability of the city.” (internal quotation omitted)).

27

In Gianatasio, as here, plaintiffs unsuccessfully attempted to invoke an exception
that allows estoppel “where a governmental subdivision acts or comports itself
wrongfully or negligently, inducing reliance by a party who is entitled to rely and who
changes his position to his detriment or prejudice.” Id. at 769 (emphasis removed)
(quoting Bender v. New York City Health & Hosps. Corp., 38 N.Y.2d 662, 668, 345
N.E.2d 561 (N.Y. 1976)).

But no matter how wrongful or negligent a government

entity’s conduct, it cannot be compelled to honor a contract that was entered without
authority. “It does not matter that the municipality or its agents violated the law.” Id. at
771 (dismissing estoppel claim even though there was “no doubt that the City acted
unlawfully and treated [plaintiff] unfairly” by begging plaintiff to continue work and then
refusing to pay “more than $1.5 million for work done and money outlaid”). “In order to
protect the public from corrupt or ill-considered actions of municipal officials, a
municipality’s power to contract is statutorily restricted.”

Henry Modell & Co., 159

A.D.2d at 355.
NRP was not entitled to rely on the alleged promises in the Wanamaker Letter
because both the PILOT agreement and the sale of City-owned property required
Common Council approval. In other words, pursuant to the terms of the City Charter,
NRP was not entitled to rely because BURA did not have the authority to make
unconditional promises. It is of little importance why the promise exceeded the agent’s
power—whether it was an illegal promise, as in Gianatasio, or required legislative
approval, as here—the promise need only be outside the authority of the promisor. See
Gianatasio, 53 Misc. 3d at 771. Here, because Wanamaker, and through him BURA,
had no legal authority to provide a PILOT agreement or transfer City-owned property

28

absent approval from the Common Council, it would be against New York law, and wellestablished public policy, to enforce those promises. See id. at 769; see also Parsa, 64
N.Y.2d at 147 (government entity’s “acceptance of benefits furnished under a contract
made without authority does not estop it from challenging the validity of the contract or
from denying liability pursuant to it”). 15
As with the RICO claim, Deputy Mayor Casey did not move to dismiss the
promissory estoppel claim against him. However, having found that the promises are
unenforceable against the City and its agents because they were not in compliance with
the City Charter, this Court finds sua sponte that they cannot bind Deputy Mayor Casey.
Accordingly, the promissory estoppel claim is dismissed in its entirety. 16
C.

NRP’s Motion for Additional Discovery
Rule 56(d) permits a party to oppose a motion for summary judgment on the

grounds that it needs discovery where it “shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its opposition.” Fed. R. Civ.
P. 56(d). The affidavit must set forth: “‘(1) what facts are sought [to resist the motion]
and how they are to be obtained, (2) how those facts are reasonably expected to create
a genuine issue of material fact, (3) what effort affiant has made to obtain them, and (4)
why the affiant was unsuccessful in those efforts.’” Graves v. Corr. Med. Serv., No. 1115

Nor is this Court persuaded by NRP’s argument that the approvals were “pro forma” and that all prior
resolutions on development projects had been approved after they were submitted to the Common
Council. Approvals that are required by the City Charter to make a valid contract are not mere formalities
or technicalities. See Henry Modell & Co., 159 A.D.2d 354. “To be valid, municipal contracts must
comply with specific statutory requirements.” H & R Project Assocs., Inc. v. City of Syracuse, 289 A.D.2d
967, 967, 737 N.Y.S.2d 712, 714 (4th Dep’t 2001) (quotation omitted) (contract could not be enforced
because it did not comply with the city charter).
16
Mayor Brown and Council Member Smith also challenge this claim on the grounds that it cannot be
brought against individuals; BURA argues that, because it was not a party to the two promises, it cannot
be liable. Because this Court has found that the claim must be dismissed in its entirety because there
was no authority to make the promises without legislative approval, it will not address Defendants’
additional arguments.

29

CV-1005AM, 2015 WL 1823456, at *3 (W.D.N.Y. Apr. 22, 2015), aff’d, No. 15-1621,
2016 WL 3472602 (2d Cir. June 24, 2016) (quoting Miller v. Wolpoff & Abramson,
L.L.P., 321 F.3d 292, 303 (2d Cir. 2003)). “A party seeking to delay resolution of a
summary judgment motion on grounds that he has been deprived of certain discovery
materials ‘must show that the material sought is germane to the defense, and that it is
neither cumulative nor speculative, and a bare assertion that the evidence supporting a
plaintiff’s allegation is in the hands of the defendant is insufficient.’” Alphonse Hotel
Corp. v. Tran, 828 F.3d 146, 151 (2d Cir. 2016) (quoting Paddington Partners v.
Bouchard, 34 F.3d 1132, 1138 (2d Cir. 1994)).
NRP contends that it needs additional discovery to establish facts in broadly
three areas: (1) the motives for killing the project, (2) evidence that the decision not to
introduce the resolutions was administrative, not legislative; and (3) that BURA had
authority to bind the City. (See Docket No. 177, Lane Decl.) However, any evidence
that could be adduced in these areas would not create a genuine issue of material fact.
Defendants’ motives for killing the project are not relevant and cannot be taken into
account in this Court’s evaluation of legislative immunity. And the sources of evidence
identified, namely depositions of City officials and legislative materials, could not provide
any evidence as to whether the acts were administrative, nor as to whether BURA had
authority to bind the City, because these are questions of law for this Court to decide.
See generally Alphonse Hotel, 828 F.3d at 151 (denying 56(d) motion because the
documents identified “do not contain information that would change the outcome of the
summary judgment motion”). Because NRP has not identified any genuine disputes of
material fact, the motion for additional discovery must be denied.

30

See Sousa v.

Marquez, 702 F.3d 124, 129 (2d Cir. 2012) (no need for additional discovery where
plaintiff “has not shown a genuine dispute of material fact with respect to his . . . claim
because he has not even stated a claim upon which relief could be granted”).
D.

Consideration of NRP’s Sur-Reply
NRP also moved to file a sur-reply to the City Defendants’ motion for summary

judgment on the grounds that the City Defendants’ reply brief was improper. NRP
argues that the City Defendants, inter alia, misrepresent facts related to their
compliance with discovery orders and improperly submitted objections to NRP’s
statement of facts. As stated above, this Court finds there are no material issues of
disputed fact, thus the discovery disputes need not be resolved. And, although the City
Defendants objected to numerous aspects of NRP’s response to their statement of
undisputed facts and filing of its own statement of facts, this Court gave consideration to
NRP’s submissions because, also as noted above, NRP argued that discovery was
incomplete and because factual assertions must be viewed in the light most favorable to
the nonmoving party. See Anderson, 477 U.S. at 255. Again, because there are no
material issues of disputed fact, this Court need not consider NRP’s proposed sur-reply
to appropriately view those factual assertions.
Further, this Court disagrees with NRP’s contention that the City Defendants
made a new legal argument by citing to Gianatasio, 53 Misc. 3d 757, for the first time in
their reply. Gianatasio stands for the same legal propositions as the cases cited in the
City Defendants’ motion for summary judgment, and indeed cites many of the cases
relied on by both parties in their papers. Accordingly, NRP’s motion is denied and the
proposed sur-reply will not be considered.

31

IV. CONCLUSION
The City Defendants and BURA’s motions for summary judgment are granted
and the claims against them are dismissed. The claims against Deputy Mayor Casey
are also dismissed, sua sponte. NRP’s motions for additional discovery and for leave to
file a sur-reply are denied.
V. ORDERS
IT HEREBY IS ORDERED, that Defendants the City of Buffalo, Byron W. Brown,
and Demone A. Smith’s motion for summary judgment (Docket No. 152) is GRANTED;
FURTHER, that the City of Buffalo Urban Renewal Agency’s motion for summary
judgment (Docket No. 165) is GRANTED.
FURTHER, that the claims against Steven M. Casey are dismissed.
FURTHER, that Plaintiffs NRP Holdings LLC and NRP Properties LLC’s motion
for additional discovery (Docket No. 177) is DENIED.
FURTHER, that Plaintiffs NRP Holdings LLC and NRP Properties LLC’s motion
for leave to file a sur-reply (Docket No. 194) is DENIED.
FURTHER, that the Clerk of Court is directed to close this case.
SO ORDERED.
Dated: February 27, 2017
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge

32