Second Circuit Revives Buffalo Property Owner’s Claims After City Demolished Building Under Emergency Order

Kenney Shelton Liptak Nowak LLP  |  Civil Litigation Update

By Shannon T. O'Connor, Esq.

The City of Buffalo tore down a building without a hearing, called it an emergency, and won summary judgment on every constitutional claim the owners raised. On June 18, 2026, the Second Circuit undid most of that victory.

Levin v. City of Buffalo, No. 25-762, is a cautionary study for municipalities and their insurers. It shows how quickly the deference courts extend to emergency action can dissolve when the record does not prove an emergency, and how a single official’s decision can expose a city to liability without any broader policy or custom.

What Happened

Maxim Levin and Vodka Properties LLC owned a residential building in Buffalo that the City demolished under emergency authority on September 30, 2019. The City pointed to two conditions: illegal drug activity on the property, which had culminated in an overdose death where a needle was later found, and the building’s vacant, abandoned, and allegedly structurally compromised state. No pre-deprivation hearing was held, although one was already scheduled about three weeks out.

The owners sued under 42 U.S.C. § 1983, alleging procedural and substantive due process violations, an unlawful taking, and an unreasonable seizure, along with state-law claims against Empire Dismantlement Co., the private company that performed the demolition.

The district court granted summary judgment across the board: qualified immunity for the individual officials, no state action for Empire, and no municipal liability for the City. In a per curiam opinion, a Second Circuit panel of Judges Walker, Parker, and Bianco affirmed in part, vacated in part, and remanded.

The Emergency Exception and Its Limits

Due process ordinarily requires a hearing before the government takes a person’s property. Under the emergency exception, a municipality may act first and provide process afterward when a genuine emergency makes a pre-deprivation hearing impractical (Parratt v. Taylor; WWBITV, Inc. v. Village of Rouses Point).

Courts give real deference to that decision. Under Catanzaro v. Weiden, due process is offended only when the emergency procedure is invoked in an arbitrary manner or amounts to an abuse of discretion.

That deference, though, presupposes an actual emergency, and here the court found the emergency itself genuinely disputed. Nearly a month had passed between the overdose death and the demolition; the record showed no continuing public-health risk from drug use and no evidence that the City weighed any alternative short of demolition; and the Commissioner testified that he would have waited had he known a hearing was already scheduled.

The structural-danger justification was supported only by sparse, conflicting evidence. Whether an emergency existed was therefore a jury question, which defeated summary judgment on the procedural due process, taking, and unreasonable seizure claims. The court affirmed dismissal of the substantive due process claim as derivative of the more specific Fourth and Fifth Amendment claims.

The court did hold that the City’s notice was adequate, because it posted notice at the building and sent it by certified and regular mail, unlike cases where owners learned of a demolition by chance. But adequate notice does not rescue the City when the justification for skipping the hearing is itself in dispute.

One Official Can Be the City

The most consequential part of the decision concerns municipal liability. Under Monell v. Department of Social Services, a city is liable under § 1983 only for injuries caused by its policy or custom, and the district court dismissed on the ground that the owners had shown no such policy.

That was an error. A single decision by an official with final policymaking authority is itself municipal policy (Pembaur v. City of Cincinnati). Uncontroverted evidence established that Commissioner James Comerford, Jr. held final, discretionary authority over emergency demolitions under the City Code and Charter, and that his decision set this demolition in motion.

His lone decision supplied the policy, so the City faces Monell liability without any need to prove a widespread practice. This is the trap for municipal defendants who reflexively argue only the absence of a custom.

Qualified Immunity Splits the Defendants

The qualified immunity analysis divided the officials by role. The Commissioner was denied immunity at the summary judgment stage because it was clearly established that, absent an emergency, a pre-deprivation hearing was required, and because the disputed facts prevent any finding that his emergency determination was objectively reasonable, immunity cannot be resolved on this record.

The remaining officials, including the Mayor and several inspectors, kept their immunity. They had merely observed the property and reported their findings to the Commissioner, who made the decision. It was objectively reasonable for officials with that limited role to believe their participation did not violate the owners’ rights.

The lesson is that immunity tracks decisional responsibility: the official who invoked the emergency carries the exposure, while those who only gathered information do not.

The Private Contractor Walked

Empire, the demolition contractor, was dismissed entirely. A private company is liable under § 1983 only where its conduct is fairly attributable to the state (Lugar v. Edmondson Oil; Logan v. Bennington College).

Empire’s role was confined to carrying out the physical demolition under a low-bid contract, and it played no part in deciding whether the demolition should occur. With no state action, the § 1983 claims failed, and the state-law negligence and trespass claims failed as well, the latter because the City’s consent privileged Empire’s entry.

Practical Takeaways

• Document the emergency. The deference courts give evaporates when the record cannot show a genuine, immediate threat. Contemporaneous findings on the specific danger, its immediacy, and why waiting was not feasible are what preserve the defense.

• Consider and record alternatives. The absence of any evidence that the City weighed measures short of demolition drove the result.

• Watch the clock. A month between the triggering event and the demolition, plus a hearing already on the calendar, undercut the emergency label.

• Identify the final policymaker. A single decision by the official with final authority can establish Monell liability regardless of any broader custom.

• Adequate notice is not a cure-all. Good notice defeats a notice challenge, not a claim that the emergency itself was unjustified.

  
  

Kenney Shelton Liptak Nowak LLP regularly represents municipalities, public entities, and their insurers in § 1983 and civil rights litigation, including due process, takings, and qualified immunity defense. For questions about how Levin v. City of Buffalo may affect pending or future matters, contact our civil litigation team. This article is provided for general informational purposes and does not constitute legal advice.