Levin et al v. City of Buffalo et al

Filing 112

DECISION AND ORDER that the City's motion for reconsideration is granted to the extent it seeks dismissal of Plaintiffs' Third and Seventh claims against the City. This action is dismissed on summary judgment in its entirety. The Clerk of Court shall close the case. Signed by Hon. John L. Sinatra, Jr. on 3/4/2025. (CGJ)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LOEWENGU1

N DISTRI

MAXIM LEVIN and
VODKA PROPERTIES LLC,
20-CV-1511 (JLS) (LGF)
Plaintiffs,
V.

CITY OF BUFFALO,

Defendant.

DECISION AND ORDER
Plaintiffs Maxim Levin and Vodka Properties LLC (collectively, "Plaintiffs")
commenced this action pursua nt to 42 U.S.C. § 1983 and New York law asserting
claims against various Defendants-including the City of Buffalo (the "City")relating to the demolition of a two-family residential building located at 393
Hampshire Street in Buffalo, New York. See Dkt. 1.
On February 29, 2024, this Court issued a Decision and Order addressing the
parties' motions for summary judgment, Dkt. 66, and ordered that this action sh all
proceed against the City on Plaintiffs' Third claim (unlawful taking under 42 U.S.C.
§ 1983). Id. The Court dismissed Plaintiffs' remaining claims-except that it
reserved decision on Plaintiffs' Seventh claim (unreasonable search and seizure
under Section 1983) against the City. Id. In a subsequent Decision and Order, the
Court ordered that Plaintiffs' Seventh claim sh all also proceed against the City. See

Dkt. 72. As a result, only Plaintiffs' Third claim and Seventh claim (as asserted
against the City) remain.
The Court then set a trial date. See Dkt. 74. But in its trial brief, the City
argued that Plaintiffs "cannot prevail at trial" because "the only claims that remain
are brought under 1983 for constitutional violations against the City of Buffalo, and
those claims fail under Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978)." Dkt. 95
at 16-17. As such, the City "suggest[s] that reconsideration is appropriate here, to
avoid the unnecessary expenditure of time and resources at trial to result in a
directed verdict." Id. at 18. The Court ordered supplemental briefing on this issue.
See Dkt. 108.
In its supplemental memorandum, the City argues that, in "dismissing
Plaintiffs['] claims for Municipal Liability" and "granting the City Defendants'
motion as to the individually named defendants, the Court foreclosed any
opportunity for the Plaintiffs to prevail under§ 1983 for alleged constitutional
violations at trial." Dkt. 109 at 9. And because the "only two (2) remaining claims
are asserted under§ 1983 against the only remaining defendant, the City of
Buffalo, the Plaintiff cannot prevail at trial." Id. The City, therefore, "submits that
the Complaint should be dismissed through reconsideration or a directed verdict
prior to proof in the sake of judicial economy." Id.
In response, Plaintiffs "agree[d] that a municipality cannot be held liable for
a Fourth [Amendment] violation unless under Monell ...." Dkt. 110 at 2n.1. But
Plaintiffs maintain that they "have demonstrated substantial factual disputes

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regarding the City's unlawful taking of their property under the Fifth Amendment."
Id. at 4. According to Plaintiffs, therefore, "this case must proceed to trial." Id. 1
For the reasons below, Plaintiffs' remaining claims are not viable. As such,
the action is dismissed in its entirety.
DISCUSSION

I.

RECONSIDERATION STANDARD

The Court "may justifiably reconsider its previous ruling if: (1) there is an
intervening change in the controlling law; (2) new evidence not previously available
comes to light; or (3) it becomes necessary to remedy a clear error of law or to
prevent manifest injustice." Chompupong v. City of Schenectady, No.
117CV929MADCFH, 2021 WL 1758803, at *1 (N.D.N.Y. May 4, 2021) (citing
Delaney u. Belsky, 899 F. Supp. 923, 925 (N.D.N.Y. 1995); Doe v. New York City
Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir. 1983)).
The "standard for granting [a motion for reconsideration] is strict, and
reconsideration will generally be denied unles-s the moving party can point to
controlling decisions or data that the court overlooked-matters, in other words,
that might reasonably be expected to alter the conclusion reached by the court."
Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). A "motion to
reconsider should not be granted where the moving party seeks solely to relitigate
an issue already decided." Id. Thus, such a motion is "not a vehicle for relitigating
old issues, presenting the case under new theories, securing a rehearing on the

1 The City then replied.

Dkt. 111.
3

merits, or otherwise taking a 'second bite at the apple."' Sequa Corp. v. GBJ Corp.,
156 F.3d 136, 144 (2d Cir. 1998).
Reconsideration is appropriate on this record. As such, the Court will
reconsider, in part, its prior rulings on the parties' motions for summary judgment
(Dkt. 66, 72). And for the reasons below-namely, that Plaintiffs failed to establish
any viable municipal (or Monell) liability-Plaintiffs' remaining claims (the Third
and Seventh claims against the City) are now dismissed.
II.

MUNICIPAL LIABILITY

Under Section 1983, "a municipality may be liable for the violation of a
person's civil rights only if the moving force behind that violation was an official
policy or custom of the municipality." Williams v. Town Of Southington, 2000 WL
232054, at *2 (2d Cir. 2000) (citing Monell, 436 U.S. at 690-94). A "plaintiff 'must
first prove the existence of a municipal policy or custom' that caused [his] injuries,
and must establish a causal connection between the policy and the alleged civil
rights violation." Id. (quoting Vippolis v. Village of Haverstraw, 768 F.2d 40, 44 (2d
Cir. 1985), cert. denied, 480 U.S. 916 (1987)).
A "municipal policy or custom may be proved by showing that the
government officials responsible for establishing municipal policies took the actions
or made the decisions [that] caused the alleged violation of the plaintiffs civil
rights." Id. (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84 (1986)). And
"under certain circumstances[,] a single decision by municipal policymakers may
constitute a practice or policy sufficient to establish municipal liability under

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§ 1983." Id. (citing Pembaur, 475 U.S. at 480). Indeed, "[a]bsent such a custom,
policy, or usage, a municipality cannot be held liable on a respondeat superior basis
for the tort of its employee." Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir.
2012) (citing Monell, 436 U.S. at 691)). See also Connick v. Thompson, 563 U.S. 51,
60 (2011) (local governments "are not vicariously liable under§ 1983 for their
employees' actions").
In this case, Magistrate Judge Foschio concluded that, under Monell,
"Plaintiffs have adduced no evidence regarding the asserted demolitions amounting
to an official policy or custom ...." Dkt. 53 at 72. He recommended, therefore, that
this Court grant summary judgment to Defendants on Plaintiffs' Tenth claim
(''Violation of the Fourteenth Amendment Policy, Custom, and Practice of
Defendants and Failure to Train under 42 U.S.C. § 1983 Against the City of
Buffalo"). See id. at 71-72. This Court accepted and adopted that recommendation.
See Dkt. 66 at 5-6. And that conclusion remains valid.
As a result, given the absence of any "official policy or custom" that deprived
Plaintiffs of any Constitutional right, all of Plaintiffs' Section 1983 claims against
the City are not viable. See Williams, 2000 WL 232054, at *2.
Indeed, courts in this Circuit have dismissed Section 1983 claims against
municipalities for alleged Constitutional violations for failure to satisfy Monell. For
example, in Smith v. City of Albany, No. 1:03-CV-1167, 2006 WL 839525 (N.D.N.Y.
Mar. 27, 2006), affd, 250 F. App'x 417 (2d Cir. 2007), the plaintiff "assert[ed] five
claims under 42 U.S.C. § 1983"-namely, that "his rights under the Fourth, Fifth

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and Fourteenth Amendments were violated by defendants 'under color' of the City
of Albany ordinance[,] which authorized demolition of his property." Id. at *8. The
Court dismissed Plaintiffs' claims against the City, reasoning that "plaintiff has
submitted no evidence in his moving or opposition papers to establish municipal
liability in accordance with the well-established Monell standard." Id. See also
Birdsall v. City of Hartford, 249 F. Supp. 2d 163, 174 (D. Conn. 2003) (dismissing
Section 1983 claims for constitutional violations against the City of Hartford
because the plaintiff did "not allege that there was a specific municipal policy that
was the root cause of his injuries, nor [did] he suggest that there was a custom of
constitutional abuses beyond the incident alleged in his complaint"); 2 Khapesi v.
City of New York, No. 13-CV-4149 WFK, 2013 WL 3934238, at *1 (E.D.N.Y. July 30,
2013) ("to the extent Plaintiff seeks to bring a [Section 1983] claim against the City
of New York, his claim must be dismissed as Plaintiff has failed to allege facts
demonstrating that an officially adopted policy or custom of the City of New York
caused a violation of Plaintiff's federally protected rights").
In addition, at least one other court in this Circuit has dismissed analogous
claims in the present posture. In Chompupong v. City of Schenectady, No.
117CV929MADCFH, 2021 WL 1758803 (N.D.N.Y. May 4, 2021), the court
concluded, at summary judgment, "that questions of material fact remained as to
Plaintiffs' Fourth Amendment, Fifth Amendment, and state law claims [against the

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

Amendment claims [were] premised on the Due Process Clause or the Takings
Clause," the "claims cannot be sustained" in "either case." Id. at 170.
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defendant city], but that Plaintiffs had failed to establish Monell liability." Id. at
*l. Upon reconsideration, the city argued that "the Court must dismiss Plaintiffs'

Fourth and Fifth Amendment claims because it found that Plaintiffs failed to plead
and prove a Monell claim against the City." Id. The Court agreed-concluding
that, because "Monell liability does not attach and Plaintiffs have not established
that their Section 1983 claims may be brought directly against the City[,] ...
Plaintiffs' Fourth and Fifth Amendment claims against the City must be
dismissed." Id. at *3. Chompupong is persuasive here.
Plaintiffs' cases are inapposite. First, they rely on Knick v. Twp. of Scott,

Pennsylvania, 588 U.S. 180, 139 (2019), where the Supreme Court "overruled its
prior holding ... that 'a property owner whose property has been taken by a local
government has not suffered a violation of his Fifth Amendment rights-and thus
cannot bring a federal takings claim in federal court-until a state court has denied
his claim for just compensation under state law." Stensrud v. Rochester Genesee

Reg'l TransportationAuth., No. 23-765, 2024 WL 2104604, at *1 (2d Cir. May 10,
2024), cert. denied, 145 S. Ct. 377 (2024) (quoting Knick, 588 U.S. at 184). Knick did
not discuss Monell or the requirements for bringing a Section 1983 claim against a
municipality. And the City here does not argue that Plaintiffs were required to
seek compensation in state court prior to bringing this lawsuit.
Plaintiffs also cite Progressive Credit Union v. City of New York, 889 F .3d 40
(2d Cir. 2018), which pre-dates Knick. Although the court there stated that
"takings claims may be asserted against local governments," id. at 55, it did not

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discuss the requirements for such claims and, ultimately, concluded that "plaintiffs'
takings claim [was] not ripe for review in federal court" because "plaintiffs [had] not
yet asked the state for compensation ...." Id.
Lastly, Plaintiffs cite One Barberry Real Est. Holding, LLC v. Maturo, No.
3:17-CV-00985 (KAD), 2021 WL 4430599 (D. Conn. Sept. 27, 2021), for the
proposition that "other district courts in the Second Circuit have allowed Section
1983 takings claims against municipalities to proceed to trial." See Dkt. 110 at 3.
Although that court ultimately denied summary judgment as to the plaintiff's
Takings Claim, it did so applying Monell and concluding that "Plaintiffs have
identified a genuine issue of material fact as to whether the [Zoning Board of
Appeals] ratified the actions of the individual Town officials." One Barberry Real

Est. Holding, LLC, 2021 WL 4430599, at *10.
In sum, in the absence of Monell liability, Plaintiffs' remaining Section 1983
claims against the City may not proceed.

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CONCLUSION
For these reasons, the City's motion for reconsideration is GRANTED to the
extent it seeks dismissal of Plaintiffs' Third and Seventh claims against the City.
This action is DISMISSED-on summary judgment -in its entirety. The Clerk of
Court shall close the case.

SO ORDERED.
Dated:

March 4, 2025
Buffalo, New York

J~
UNIT

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NATRA, JR.
STATES DISTRICT JUDGE