govinfo:USCOURTS-nynd-1_23-cv-01354-3

UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF NEW YORK 
_________________________________________________ 
 
DANIEL J. MERCKX et. al., 
 
     Plaintiffs, 
 
   v.       1:23-CV-1354 
            (FJS/MJK) 
 
RENSSELAER COUNTY, et. al., 
 
     Defendants. 
___________________________________________ 
 
SCULLIN, Senior Judge 
 
MEMORANDUM DECISION AND ORDER 
 
 Pending before the Court are Rensselaer County's, Cattaraugus County's, the City of Port 
Jervis', and the City of Buffalo's motions to dismiss Plaintiffs Daniel J. Merckx's, Timothy S. 
Laraway Jr.'s, Barbara Snashell's, Chignard and Martine Noelizaire's, Thomas Sweeny's, Dotty 
Carr's, and Arthur McDowell's ("Plaintiffs") Amended Complaint.  See Dkt. Nos. 121, 93, 95, 94.  
For the reasons below, the Court grants these motions in part and denies these motions in part.   
 
I. BACKGROUND 
A. Facts 
 1. Rensselaer County 
 Ronald P. Merckx owned property located at 3 Pinewood Avenue ("Merckx Property") in 
Rensselaer County.  (Amended Complaint, Dkt. 75, pg. 5, at ¶¶13,14).  At some point, 
Rensselaer County foreclosed on the Merckx Property due to $37,707 in unpaid taxes, fees, 
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 1 of 40
- 2 - 
 
and/or penalties owed.  (Id. at ¶15).1  On July 25, 2018, Ronald P. Merckx died.  (Id. at ¶16).  
Nearly a month later, on August 31, 2018, Rensselaer County sold the Merckx Property for 
$80,000, which netted the County $42,293 of surplus monies.  (Id. at ¶¶16, 17).  Rensselaer 
County never returned the surplus money to the Merckx Estate, which Plaintiff Daniel J. Merckx 
administrates and to which he is the only heir.  (Id. at ¶¶13, 17).  Rensselaer County does not 
have a process to return the surplus value.  (Id., pg. 6, at ¶19).   
 Timothy S. Laraway Jr. owned property located at 3135 U.S. Highway (" Laraway 
Property") in Rensselaer County.  (Id. at ¶22).  At some point, Rensselaer County foreclosed on 
the Laraway Property because of $8,810 of unpaid fees.  (Id. at 23).  On October 30, 2017, 
Rensselaer County sold the Laraway Property for $29,000, netting $20,190 in surplus proceeds.  
(Id. at ¶¶24, 25).  Rensselaer County never returned the surplus proceeds to Plaintiff Laraway Jr.  
(Id., pgs. 6-7, at ¶¶25-28). 
  
 2. Cattaraugus County 
Barbara Snashell owned property located at 9152 Route 219 ("Snashell Property") in 
Cattaraugus County.  (Id., pg. 7, at ¶30).  At some point, Cattaraugus County foreclosed on the 
Snashell Property because of $11,846 in unpaid fees.  (Id. at ¶31).  In 2021, Cattaraugus County 
sold the Snashell Property for $60,400, netted $48,554 in surplus proceeds, and retained the 
surplus proceeds.  (Id. at ¶¶32-34).  Cattaraugus County neither returned the surplus proceeds to 
Plaintiff Snashell nor had a process to return the surplus proceeds.  (Id. at ¶¶35-36). 
 
1 For brevity, this MDO will use "fees" as a shorthand for "taxes, fees, and/or penalties owed." 
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 2 of 40
- 3 - 
 
 
3. The City of Port Jervis 
 Chignard and Martine Noelizaire owned property located at 185 Ball Street ("Noelizaire 
Property") in the City of Port Jervis.  (Id., pg. 8, at ¶38).  In December 2017, Port Jervis 
foreclosed on the Noelizaire Property because of $2,562.29 in unpaid fees.  (Id. at ¶¶39-40).  In 
December 2019, Port Jervis sold the Noelizaire Property for $26,500.  (Id. at ¶41).  Port Jervis 
netted and retained $23,937 of surplus proceeds.  (Id. at ¶42, 45). The Noelizaire Plaintiffs allege 
that Port Jervis does not have process to return surplus value.  See (Id., pg. 24, at ¶128).  The Port 
Jervis Charter reads in relevant part:  
The City Clerk-Treasurer, after the period of redemption shall have 
expired, shall pay any surplus which may be paid to him in a case 
where the bid exceeds the tax, assessment, penalty or interest, and 
costs and expenses of sale as hereinbefore provided, to the person or 
persons entitled thereto, and such person or persons shall be 
ascertained in the same manner and by the same proceedings as in 
the case of a surplus arising from the foreclosure of a mortgage on 
real estate. 
(Port Jervis MTD, Dkt. 95-13, at pg. 4). 
  
4. The City of Buffalo  
Mary Pedano owned property located at 2445 Bailey Avenue ("Pedano Property") in the 
City of Buffalo.  (Amended Complaint, Dkt. 75, pg. 9, at ¶47).  At some point, the City of 
Buffalo foreclosed on the Pedano Property because of $4,668.26 of unpaid fees.  (Id. at ¶48).  On 
April 22, 2013, Mary Pedano died, and her son, Plaintiff Thomas Sweeny, became Executor of 
her Estate.  (Id. at ¶49).  In October 2019, the City of Buffalo sold the Pedano Property for 
$48,000.  (Id. at ¶50).  The City netted and retained $43,331.74 of surplus proceeds.  (Id. at ¶¶51-
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 3 of 40
- 4 - 
 
52).  Plaintiff alleges that the City of Buffalo does not have a process to return surplus money.  
See (Id., pg. 24, at ¶128).   
Carolyn Dell Carr owned property located at 27 Sweet Avenue ("Carr Property") in the 
City of Buffalo.  (Id., pg. 9, at ¶54).  At some point, the City foreclosed the Carr Property 
because of $4,537.15 of unpaid fees. (Id., pg. 10, at ¶55).  On May 1, 2020, Carolyn Carr died, 
and on August 31, 2022, Carolyn's sister, Plaintiff Dotty Carr, became the V oluntary 
Administrator of her estate.  (Id. at ¶56).  In October 2019, the City of Buffalo sold the Carr 
property for $35,000.  (Id. at ¶57).  The City obtained $30,462.85 of surplus value proceeds and 
never returned the surplus to Carolyn or her estate.  (Id. at ¶¶58-59).   
Plaintiff Arthur McDowell and his mother, Lola McDowell, owned property located at 69 
Wade Avenue ("McDowell Property").  (Id. at ¶¶61-62).2  At some point, the City of Buffalo 
foreclosed on the McDowell Property because of $2,592.14 of unpaid fees. (Id. at ¶63).  In 
October 2019, the City of Buffalo sold the McDowell Property for $43,000.  (Id. at ¶64).  The 
City netted $40,407.86 of surplus money, retained the surplus money, and never returned it to 
Plaintiff McDowell.  (Id., pg. 10, at ¶¶ 65-67).  
 
B. Procedural History 
 Plaintiffs now sue the following:  
1. Rensselaer County;  
2. Mark Wojcik in his official capacity as Chief Fiscal Officer of Rensselaer County;  
3. Cattaraugus County;  
4. Matthew J. Keller, in his official capacity as Treasurer of Cattaraugus County;  
5. The City of Port Jervis;  
6. Laura Quick, in her official capacity as City-Clerk Treasurer of Port Jervis,  
7. The City of Buffalo;  
 
2 Lola McDowell died in January 2023.  (Amended Complaint, Dkt. 75, pg. 9, at ¶62).  
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 4 of 40
- 5 - 
 
8. Michael Seaman, in his official capacity of Director of Treasury and Collections of 
Buffalo; 
9. New York State Attorney General Letita James; and 
10. Amanda Hiller, the Acting Tax Commissioner for the New York State Department of 
Taxation and Finance 
("Defendants").  (Amended Complaint, Dkt. 75, pgs. 11-12, at ¶¶ 68-81).3  
Relevantly, Plaintiffs plead 10 claims in their lawsuit: 
1. Violation of the U.S. Constitution's Fifth Amendment's Takings Clause 
2. Violation of Article I § 7 of New York State's Constitution (The New York State 
Constitution's Takings Clause) 
3. Violation of the U.S. Constitution's Eighth Amendment's Excessive Fines Clause 
4. Violation of Article I § 5 of New York State's Constitution (The New York State 
Constitution's Excessive Fines Clause) 
5. Declaratory Judgment that N.Y . Real Property Tax Law §§ 1136(2)(D), 1136(3) violate 
the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution 
6. Unjust enrichment 
7. Money Had and Received 
8. Equitable Accounting 
9. Inverse Condemnation 
10. Injunctive Relief  
(Id. at pgs. 23-35). 
 Under Fed. R. Civ. P. 42(a), Magistrate Judge Mitchell J. Katz consolidated several cases 
due to the common issues of law and fact.  (Consolidation Order, Dkt. 126).
4  Now, Defendants 
 
3 Defendants Keller, Wojcik, Quick, Seaman, James, and Hiller have been terminated based on 
stipulations of dismissal.  (Dkt. 140). 
 
4 Magistrate Judge Katz "determined that there are common questions of law that affect all of the 
cases and have been raised in the motions to dismiss that have been filed in Merckx, et. al. v. 
Rensselaer County, et. al., 1:23-CV-1354, Rich v. Warren Cty., 1:24-CV-314[,] and Wolszyn v. 
Tioga County, 3:23-CV-1585."  "Pursuant to Fed. R. Civ. P. 42," Magistrate Judge Katz, on his 
own, "consolidate[ed] the cases with the following case numbers: 1:23-CV-1311, 1:23-CV-1539, 
1:23-CV-1574, 1:23-CV-1615, 1:23-CV-1649, 1:24-CV-259, 1:24-CV-280, 1:24-CV-281, 1:24-
CV-314, 1:24-CV-327, 1:24-CV-328, 3:23-CV-1585, 3:24-CV-9, 3:24-CV-258, 5:23-CV-1603, 
5:24-CV-15, 5:24-CV-289, 5:24-CV-594, 5:24-CV-742, 6:23-CV-1587, 6:24-CV-287, 6:24-CV-
868, 6:24-CV-902, 8:23-CV-1524, 8:23-CV-1606, 8:24-[CV-] 250, and 8:24-CV-257 with 
Merckx, et al v. Rensselaer County, et. al., 1:23-CV-1354, for the singular purpose of addressing 
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 5 of 40
- 6 - 
 
move to dismiss Plaintiffs' Amended Complaint.5  Plaintiffs responded.  (Pl. Response, Dkt. 
102).  And Defendants replied.  (City of Buffalo Reply Br., Dkt. 118); (Def. Consolidated Reply 
Br., Dkt. 119).  The Court now addresses these motions.6 
 
II. STANDARD OF REVIEW 
 
Although complaints do "not need detailed factual allegations" to survive a motion to 
dismiss, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires 
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action 
will not do[.]"  Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation 
omitted).  Indeed, Rule 8 of the Federal Rules of Civil Procedure "demands more than an 
unadorned, the-defendant-unlawfully-harmed-me accusation."  Ashcroft v. Iqbal, 556 U.S. 662, 
678 (2009) (citation omitted).  A complaint which "tenders 'naked assertion[s]' devoid of 'further 
factual enhancement' will not suffice."  Id. (quotation omitted).  Rather, a complaint's "[f]actual 
allegations must be enough to raise a right to relief above the speculative level."  Twombly, 550 
U.S. at 555 (citations omitted).   
When ruling on a defendant's motion to dismiss, all factual allegations contained in the 
complaint must be accepted as true and all reasonable inferences must be drawn in favor of the 
 
the common questions of law in the context of the pending motions to dismiss (Dkt. Nos. 93, 94, 
95, 121)." (Dkt. 126) (cleaned up).  
 
5 (Rensselaer County MTD, Dkt. 121); (Cattaraugus County MTD, Dkt. 93); (City of Buffalo 
MTD, Dkt. 94); (Port Jervis MTD, Dkt. 95). 
 
6 Consistent with the consolidation order, the Court considers the additional arguments briefed by 
the non-moving Defendants as additional support for dismissal, and the additional arguments 
briefed by other Plaintiffs as additional arguments in opposition to dismissal.  Any claims or 
defenses not addressed in this decision may be advanced by the parties in a properly filed motion 
for summary judgment in their individual cases.  
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 6 of 40
- 7 - 
 
plaintiff.  Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012) (citation omitted).  But 
"the tenet that a court must accept a complaint's allegations as true is inapplicable to threadbare 
recitals of a cause of action's elements, supported by mere conclusory statements."  Iqbal, 556 
U.S. at 663 (citation omitted).  Additionally, "[i]n adjudicating a Rule 12(b)(6) motion, a district 
court must confine its consideration 'to facts stated on the face of the complaint, in documents 
appended to the complaint or incorporated in the complaint by reference, and to matters of which 
judicial notice may be taken.'"  Leonard F . v. Isr. Disc. Bank of New York, 199 F.3d 99, 107 (2d 
Cir. 1999) (quotation omitted). 
 
III. DISCUSSION 
In this section, the Court provides a blueprint on how to read the decision.  First, the 
Court addresses whether Plaintiffs have failed to state a claim.  In Section III.A., the Court holds 
that Plaintiffs have stated a claim.  Second, the Court addresses the defenses that Defendants 
have raised to determine whether they are applicable.  In Section III.B., the Court holds that the 
statutes of limitations have been equitably tolled.  In Section III.C., the Court holds that Plaintiffs 
do not have standing to seek declaratory and injunctive relief.  In Section III.D., the Court holds 
that Plaintiffs Merckx and Sweeney do not have capacity to sue, but Plaintiff Carr does.  In 
Section III.E., the Court holds that Defendants' notice-of-claim defense is inapplicable to 
Plaintiffs' federal law claims, but Plaintiffs' state constitutional claims must be dismissed.  In 
Section III.F., the Court holds that venue is proper in the Northern District of New York.  In 
Section III.G, the Court holds that the case does not need to be dismissed, under Fed. R. Civ. P. 
12(b)(7), for failure to join necessary parties under Rule 19.  In Section III.H., the Court holds 
that this case does not present a political question.  In Section III.I., the Court holds neither claim 
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 7 of 40
- 8 - 
 
preclusion nor issue preclusion bars Plaintiffs' Takings Clause claim.  And finally, in Section 
III.J., the Court holds that Rooker-Feldman does not strip this Court of jurisdiction. 
 
A. Plaintiffs have plausibly alleged a Takings Clause violation.  
Plaintiffs have plausibly alleged a Takings Clause claim.  To plausibly allege a Takings 
Clause violation, Plaintiffs must plead that (1) the defendants have sold the plaintiffs' property 
for surplus value; (2) the defendants have retained the surplus value; and (3) the defendants do 
not have a process to return the surplus value.  Here, Plaintiffs have plausibly alleged that 
Rensselaer County, Cattaraugus County, Port Jervis, and the City of Buffalo sold Plaintiffs' 
property for surplus value, retained the surplus, and failed to maintain a process to return that 
surplus value.  In consequence, the Court finds that Plaintiffs have plausibly alleged a Takings 
Clause violation. 
Examining the Supreme Court's and Second Circuit's Takings Clause jurisprudence, the 
Court fashions a three-part test to determine if a plaintiff has plausibly alleged a Takings Clause 
violation.  At step one, the Court asks whether the municipality has sold the plaintiff's property 
for surplus value.  See Tyler v. Hennepin County, Minnesota, 598 U.S. 631, 647 (2023).  If yes, 
the Court moves on to step two.  At step two, the Court asks whether the municipality has kept 
that surplus.  See id.  If yes, the Court then moves to step three.  At step three, the Court asks 
whether the municipality has a process to return the surplus value.  See id.; Nelson v. City of New 
York, 352 U.S. 103, 109-10 (1956).  If the municipality maintains an independent process for 
returning the surplus value, the plaintiff has not plausibly alleged a Takings Clause violation.  
See Nelson, 352 U.S. at 110 (finding no Takings Clause violation because New York City had a 
process for returning surplus value after it sold foreclosed property).  But if the municipality does 
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 8 of 40
- 9 - 
 
not maintain an independent process for returning a plaintiff's surplus value after the sale of their 
foreclosed property, then a plaintiff can plausibly allege a Takings Clause claim.  See Sikorsky v. 
City of Newburgh, New York, 136 F.4th 56, 60 (2d Cir. 2025) ("If New York [S]tate or the City of 
Newburgh provide Sikorsky with no procedure to get that money back, the Constitution supplies 
a remedy"). 
Plaintiffs have plausibly alleged the first two elements.  Starting with Plaintiff Merckx, 
the Amended Complaint alleges that Rensselaer County foreclosed on the Merckx property 
because of $37,707 in unpaid fees.  (Amended Complaint, Dkt. 75, pg. 4, at ¶13).  On August 31, 
2018, the County sold the Merckx property for $80,000.  (Id. at ¶14).  Rensselaer County netted 
$42,293 of surplus value and retained that surplus money instead of returning it to the Merckx 
estate.  (Id. at ¶15).  Similarly pleaded, Rensselaer County foreclosed on the Laraway property 
because of $8,810 in unpaid fees.  (Id., pg. 5, at ¶21).  On October 30, 2017, the County sold the 
Laraway property to a third party for $29,000.  (Id. at ¶22).  Rensselaer County has retained the 
$20,190 of surplus value.  (Id. at ¶24).  The County has not returned the surplus value to Plaintiff 
Laraway.  (Id. at ¶23).  The Amended Complaint also alleges that Cattaraugus County foreclosed 
on the Snashell property because of $11,846 of unpaid fees.  (Id., pg. 7, at ¶31).  In 2021, 
Cattaraugus County sold the Snashell property to a third party for $60,400, netted $48,554 of 
surplus value, and retained the surplus money.  (Id. at ¶32-33).  Like the counties, Port Jervis 
foreclosed on the Noelizaire property because of $2,563 in unpaid fees.  (Id., pg. 7, at ¶40).  At 
some point, Port Jervis foreclosed on the Noelizaire property, sold the property to a third party 
for $26,500, and netted $23,937 of surplus value.  (Id. at ¶¶41-42).  Port Jervis retained the 
surplus money.  (Id. at ¶43).  Finally, the Amended Complaint alleges that the City of Buffalo 
foreclosed on the Pedano Property because of $4,668.26 in unpaid fees, sold the property for 
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 9 of 40
- 10 - 
 
$48,000.00, netted $43,331.74 in surplus value, and retained that surplus.  (Id. at ¶48-52).  The 
City of Buffalo also foreclosed on the Carr property because of $4,537.15 of unpaid fees, sold 
the Carr property for $35,000, netted $30,462.85 in surplus value, and retained that surplus.  (Id., 
pg. 10, at ¶¶55-58).  Lastly, the City of Buffalo foreclosed on the McDowell property because of 
$2,592 of unpaid fees, sold the McDowell property for $43,000, netted $40,407.86 in surplus 
value, and retained that surplus. (Id., pgs. 10-11, at ¶62-67).  Assuming these allegations are true 
-- as the Court is required to do at this stage of the litigation -- the Court finds that Plaintiffs have 
plausibly alleged that Defendants have sold Plaintiffs' properties for surplus value, and 
Defendants have retained the surplus value instead of returning it to Plaintiffs.  See Iqbal, 556 
U.S. at 679 ("When there are well-pleaded factual allegations, a court should assume their 
veracity and then determine whether they plausibly give rise to an entitlement to relief.").  
Next -- and most critically -- the issue is whether the city and county Defendants 
maintained a process to return surplus value to Plaintiffs.  Plaintiffs allege that neither Rensselaer 
County, Cattaraugus County, Port Jervis, nor the City of Buffalo maintained a process to return 
surplus value.  (Amended Complaint, Dkt. 75, pgs. 6-8, 24 at ¶¶ 17, 25, 33, 41, 128).   
Rensselaer County, Cattaraugus County, and the City of Buffalo dispute this allegation, 
but their arguments are unpersuasive.  Rensselaer County implies that New York's C.P.L.R. 
7803(1) ("Article 78") was the County's process to return the surplus value to Plaintiffs Merckx 
and Laraway, and those Plaintiffs failed to engage that process.  See (Rensselaer MTD, Dkt. 121-
1, at pg. 8) ("In this matter, none of the Rensselaer County Plaintiffs filed Article 78 special 
proceedings in state court within 4 months of the in rem judgments . . . The Plaintiffs' claims 
must therefore fail.”).  Likewise, Cattaraugus County and the City of Buffalo argue that Plaintiffs 
needed to file an Article 78.  But this argument fails.  See (Cattaraugus County MTD, Dkt. 93-3, 
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 10 of 40
- 11 - 
 
at pgs. 1-3); (Buffalo MTD, Dkt. 94-2, at pgs. 2-3).  At the time Plaintiffs' properties were sold, 
New York "lacked a mechanism" for plaintiffs "to recover surplus above the tax debt."  Cavaluzzi 
v. Cnty. of Sullivan, No. 23 Civ. 11067, 2024 WL 5238644, at *5 (S.D.N.Y . Dec. 27, 2024).  So 
Plaintiffs did not have a remedy.   
New York's post-Tyler process to obtain surplus value does not change the analysis.  New 
York's post-Tyler statute only provides redress to a plaintiff whose property was foreclosed 
before May 25, 2023,  "if and only if" the plaintiff timely initiated an Article 78, and that 
proceeding was still pending at the time the post-Tyler scheme was enacted.  2024 N.Y . Sess. 
Laws ch. 55, pt. BB. (emphasis added).  Because Plaintiffs' properties were "sold prior to May 
25, 2023, and" they "never brought an Article 78, in state court, the New York law afford[ed]" 
them "no remedy"; and, because Plaintiffs did not have "a local remedy, the Constitution fills the 
gap."  Sikorsky, 136 F.4th at 61 (holding that the plaintiff plausibly alleged a Takings Clause 
claim).  In sum, the Court rejects Defendants' arguments that they maintained a process to return 
surplus value.  Putting this into Rule 12(b)(6)'s legal framework, Plaintiffs Merckx, Laraway, and 
Snashell have plausibly alleged that Rensselaer County, Cattaraugus County, and the City of 
Buffalo have violated the Takings Clause. 
To the extent Rensselaer County, Cattaraugus County, and the City of Buffalo argue that 
their notice procedures were sufficient process, that is wrong.  Redemption rights and a process 
to obtain surplus value are distinct.  If they were the same, Tyler would make no sense.  The 
Tyler Court analyzed a Minnesota scheme that allowed "the delinquent taxpayer . . . three years 
to redeem the property" yet it determined that the plaintiff had "no opportunity to recover [their] 
surplus."  Tyler, 598 U.S. at 635.  If a redemption right and a jurisdiction's process to return 
surplus value were the same, the Tyler Court would have determined that the plaintiff in that case 
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 11 of 40
- 12 - 
 
had the opportunity to obtain surplus value because they had an opportunity to redeem.  The 
Tyler Court did not say that, and this Court refuses the invitation to misread that case.  
Defendants' counter argument -- that Tyler does not apply retroactively -- is also 
incorrect.  When the Supreme Court "applies a rule of federal law to the parties before it, that 
rule is the controlling interpretation of federal law and must be given full retroactive effect in all 
cases still open on direct review and as to all events, regardless of whether such events predate or 
postdate [the Supreme Court's] announcement of the rule."  Harper v. Virginia Dep’. of Tax’n., 
509 U.S. 86, 97 (1993) (emphasis added).  "Consistent with this principle, the Supreme Court 
has remanded cases to lower courts to apply Tyler to cases involving pre-Tyler property tax 
sales."  Cavaluzzi, 2024 WL 5238644, at *6 (collecting cases).  Put differently, "Tyler has 'full 
retroactive effect . . . as to all events,' even if those events, -- such as the tax sales – 'predated' the 
announcement of the rule."  Polizzi v. Cnty. of Schoharie, 720 F. Supp. 3d 141, 149 (N.D.N.Y . 
2024). 
Differing from the other Defendants, Port Jervis argues that it maintained an independent 
process to return surplus value, so the Noelizaire Plaintiffs cannot state a claim against the city.  
See (Port Jervis MTD, Dkt. 95-13, at pg. 14).  The Court rejects that argument because Port 
Jervis' reliance on extrinsic material is improper at this stage. See Goel v. Bunge, Ltd., 820 F.3d 
554, 559 (2d Cir. 2016).  "Rule 12(b)(6) motion[s] challenge[] the complaint as presented by the 
plaintiff, taking no account of its basis in evidence, a court adjudicating such a motion may 
review only a narrow universe of materials."  Id.  Courts may only consider extrinsic documents 
if they are "expressly incorporated by reference" or the document is "integral to the complaint." 
Id.  A document is integral "where the complaint 'relies heavily upon its terms and effect[.]'" 
Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002).  Generally, an integral 
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 12 of 40
- 13 - 
 
document "'is a contract or other legal document containing obligations upon which the plaintiff's 
complaint stands or falls, but which for some reason -- usually because the document, read in its 
entirety, would undermine the legitimacy of the plaintiff's claim -- was not attached to the 
complaint.'"  Goel v. Bunge, Ltd., 820 F.3d at 559. (quotation omitted). 
Plaintiffs did not incorporate Port Jervis' charter by reference.  "The line between 
incorporating by reference and not doing so is fine, and, when the document is merely referenced 
or quoted, the determination 'depends on the extent to which it is relied upon and made use of in 
the Complaint.'"  Wang v. Bethlehem Cent. Sch. Dist., No. 1:21-CV-1023 (LEK/DJS), 2022 WL 
3154142, at *15 (N.D.N.Y . Aug. 8, 2022) (quotation omitted).  But "merely referencing a 
document; even quoting from a document" does not incorporate it.  Id.  Here, Plaintiffs only 
referenced Port Jervis' Charter once, and that is not enough to find that Plaintiffs incorporated the 
Charter by reference.  See Goel, 820 F.3d at 559.   
Port Jervis' Charter is not integral to Plaintiffs' Complaint.  True, Port Jervis' surplus-
proceeds process is noted in Port Jervis' Charter.  See (Port Jervis MTD, Dkt. 95-13, at pg. 14).  
But Plaintiffs' argument seems to be that there is no surplus-proceeds process because Port Jervis 
does not comply with its Charter.  Specifically, Plaintiffs argue that "Port Jervis'[] own assertions 
plausibly allege that Port Jervis nevertheless employs a policy, custom, or practice of depleting 
surplus . . .  after Port Jervis becomes the record owner of the properties."  (Pl. Response, Dkt. 
102, at pg. 12).  There is a kernel of truth to this argument.  Although Port Jervis' Charter  notes 
that "[t]he City Clerk-Treasurer . . . shall pay any surplus which may be paid to him in a case 
where the bid exceeds the" fees "to the person or persons entitled thereto, and such person or 
persons shall be ascertained in the same manner and by the same proceedings as in the case of a 
surplus arising from the foreclosure of a mortgage on real estate," Port Jervis argues that its 
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 13 of 40
- 14 - 
 
process was "accessible to Plaintiffs before the entire years' long process[.]"  Compare (Port 
Jervis MTD, Dkt. 95-13, at pg. 14) with (Port Jervis MTD, Dkt. 95-13, at pg. 15).  But under the 
Charter's own words -- the Noelizaire Plaintiffs did not need to avail themselves of the process.  
(Id. at pg. 14).  At this stage of the litigation (with Plaintiffs litigating a novel claim), the Court 
cannot say that Port Jervis' Charter is integral to Plaintiffs' Complaint.  See Sikorsky, 136 F. 4th at 
59 ("[W]here local law 'provides no opportunity for the taxpayer to recover' sale proceeds in 
excess of the tax debt owed, a plaintiff may bring a claim for a constitutional taking against the 
municipality.").  Therefore, the Court does not consider the documents Port Jervis attached; and, 
because it does not, the Court finds that the Noelizaire Plaintiffs have plausibly alleged a Takings 
Clause claim.   
To end, the Court finds that Plaintiffs have plausibly alleged that Rensselaer County, 
Cattaraugus County, Port Jervis, and the City of Buffalo have violated the Takings Clause. 
  
B. Plaintiffs' claims are not time-barred because they exercised diligence after 
exceptional circumstances prevented them from obtaining the surplus value to 
which they may have been entitled.  
 The Court equitably tolls Plaintiffs' claims until the date the Supreme Court decided 
Tyler.  If a litigant can show that they have been pursuing their rights diligently and some 
extraordinary circumstance stood in their way, a court can equitably toll the statute of limitations.  
Here, Plaintiffs argue that the statute of limitations should be tolled because New York’s Real 
Property Tax Law did not allow Plaintiffs to obtain surplus value pre-Tyler; Tyler changed their 
ability to obtain surplus value; and Plaintiffs have immediately attempted to use the right they 
obtained from Tyler.  The Court agrees.  In consequence, the Court finds that Plaintiffs' claims 
are not time barred.     
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 14 of 40
- 15 - 
 
Section 1983 does not "contain[] a statute of limitations, and thus courts must borrow a 
state statute of limitations."  Kane v. Mount Pleasant Cent. Sch. Dist., 80 F.4th 101, 107 (2d Cir. 
2023).  "Courts 'must apply the most appropriate or analogous statute of limitations,' so long as it 
is not inconsistent with federal law or policy."  Id. (quotation and other citation omitted).  
"'[Section] 1983 claims are best characterized as personal injury actions[.]'"  Lounsbury v. 
Jeffries, 25 F.3d 131, 133 (2d Cir. 1994)  (quotation omitted).  "Thus a state's personal-injury 
statute of limitations" applies "to all § 1983 claims."  Id. In New York, the statute of limitations 
for such actions is three years.  Doe v. NYS Off. of Child. & Fam. Servs., No. 1:20-cv-01195 
(BKS/CFH), 2021 WL 2826457, at *6 (N.D.N.Y . July 7, 2021) (citing N.Y . C.P.L.R. §214(5)).  
"Federal law determines when a section 1983 cause of action accrues" and "accrual occurs 
'"when the plaintiff knows or has reason to know of the injury which is the basis of [their] 
action."'"  Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir. 2002) (quotation and other 
citations omitted).
7  
"In 'rare and exceptional circumstances,' . . . the statute of limitations governing a § 1983 
claim may be subject to equitable tolling, 'where necessary to prevent unfairness to a plaintiff 
who is not at fault for [their] lateness in filing.'"  Clark v. Hanley, 89 F.4th 78, 92 (2d Cir. 2023) 
(quotation and footnote omitted).  To plausibly allege equitable tolling, "'a litigant seeking 
equitable tolling bears the burden of establishing two elements: (1) that [they] ha[ve] been 
pursuing [their] rights diligently, and (2) that some extraordinary circumstance stood in [their] 
way.'"  Id. (quotation omitted).  "The law prohibits a judge from exercising [their] discretion 
 
7 In their response, Plaintiffs do not argue that their claims fall within §1983's three-year time 
frame.  Plaintiffs only argue that the statute of limitations was tolled under the doctrine of 
equitable tolling.  (Pl. Response, Dkt. 102, at pgs. 21-22).  Because that is what these Plaintiffs 
argued, they have effectively waived the argument that their claims were not time barred without 
applying equitable tolling.  Since that argument is waived, the Court does not address it.   
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 15 of 40
- 16 - 
 
where these two elements are missing.  If they are found to be present, however, then a judge 
brings discretionary considerations to bear in deciding whether to permit equitable tolling."  Doe 
v. United States, 76 F.4th 64, 71 (2d Cir. 2023) 
New York law prevented Plaintiffs from obtaining the surplus money they now seek.  
Pre-Tyler, Article 11 of New York's Real Property Tax Law "automatically allowed taxing 
authorities to retain surplus value after tax lien foreclosure sales."  Matter of Seelbach, 85 Misc. 
3d 497, 508 (N.Y . Sup. Ct. 2024) (citations omitted).  In Tyler, the Supreme Court struck down 
Minnesota's foreclosure scheme, which, like New York, failed to provide individuals with an 
opportunity to obtain surplus value.  Tyler, 598 U.S. at 645.  "Tyler cast doubt on laws 
nationwide -- including New York's" Real Property Tax Law.  Matter of Seelbach, 85 Misc. 3d at 
508.  "In response, [New York's] Legislature amended" Article 11 of the Real Property Tax Law 
"to establish multiple methods to assert surplus rights under Tyler and the Takings Clause[.]"  Id. 
(citation omitted).  With that backdrop, it seems unlikely that Plaintiffs would have obtained a 
remedy in state court pre-Tyler.  And with that unlikely probability, it would be an extraordinary 
request of Plaintiffs -- who lost their homes because they could not afford fees -- to find a lawyer 
to fight what was likely a losing battle.  See Miner v. Clinton Cnty., N.Y., 541 F.3d 464, 475 (2d 
Cir. 2008) ("The District Courts in both cases properly dismissed plaintiffs' claims for a share of 
any surplus.  The retention of any surplus from a tax auction is constitutional because there was 
no violation of plaintiffs' right to due process related to the notices of foreclosure" (citation 
omitted)); Wasiluk v. City of Oneida, New York, No. 5:19-cv-280, 2022 WL 3716279, at *13 
(N.D.N.Y . Aug. 29, 2022) ("Here, because the applicable procedures do not afford a former 
property owner an avenue to obtain surplus equity, because Plaintiff received adequate notice of 
the forfeiture proceedings and an opportunity to redeem his property but failed to act, and 
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 16 of 40
- 17 - 
 
because Plaintiff did not have a recognized property interest in the surplus equity once the 
foreclosure proceeding was completed and the subject property conveyed to the City in fee 
[simple absolute], Plaintiff has no constitutional claim for the surplus equity in his former 
property" (citations omitted)); Cf. Wharton v. Cnty. of Nassau, No. 07-CV-2137 (RRM) (ETB), 
2010 WL 3749077, at *4 (E.D.N.Y . Sept. 20, 2010) (applying equitable tolling to the plaintiffs' 
§1983 claim because they relied on the law as it was to their detriment and a strict application of 
the Supreme Court case that changed the law "would effectively deprive Plaintiffs of their cause 
of action.").  
Plaintiffs have diligently pursued their rights since the Supreme Court decided Tyler.  On 
May 25, 2023, the United States Supreme Court decided Tyler and held that a jurisdiction's 
failure to have any process to return surplus value violated the Taking Clause.  Tyler, 598 U.S. at 
645.  Once the Supreme Court made this decision, Plaintiffs acted.  See (Dkt. 1).  This case is 
unlike Fonvil v. Cnty. of Rockland, No. 17 CV 2957 (VB), 2018 WL 357309 (S.D.N.Y . Jan. 9, 
2018).  There, the court held that the plaintiff was not entitled to equitable tolling because he 
waited 10 years after a change in the law to bring his §1983 claim.  Id. at *4.  Here -- five months 
after the Supreme Court decided Tyler -- Plaintiffs filed a Complaint.  On this record -- at this 
stage of litigation -- the Court finds that such a quick reaction demonstrates diligence.  See, e.g., 
Stensrud v. Rochester Genesee Reg'l Transportation Auth., 507 F. Supp. 3d 444, 453 (W.D.N.Y . 
2020) (applying equitable tolling where "Plaintiffs filed the instant lawsuit approximately three 
months after the Supreme Court's" decision changed the law).  
 Defendants' argument against equitable tolling -- that the right always existed -- is 
unpersuasive because Tyler created a new claim in this Circuit.  To make sense of this statement, 
the Court must start with a history lesson.   
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 17 of 40
- 18 - 
 
The Supreme Court collapsed the Fifth Amendment Takings Clause and Due Process 
Clause analysis for surplus proceeds cases in Nelson.  In 1956, the Supreme Court decided 
Nelson.  See 352 U.S. at 103.  In Nelson's reply, he argued that "the City's retention of property, 
in one instance, and proceeds of sale in the other, far exceeding in value the amounts due" 
deprived him "of property without due process of law or" he had "suffered a taking without 
justification."  Id. at 109.  The Nelson Court, rejecting this argument, focused its attention on 
United States v. Lawton, 110 U.S. 146 (1884).  Id.  In that case, the Lawton Court affirmed a 
judgment in favor of a foreclosed landowner and reasoned that, "[t]o withhold the surplus from 
the owner would be to violate the fifth amendment to the constitution, and deprive him of his 
property without due process of law or take his property for public use without just 
compensation."  Lawton, 110 U.S. at 150.  The Nelson Court, after quoting that language from 
Lawton, noted that New York City's law did not "absolutely preclude[] an owner from obtaining 
the surplus proceeds of a judicial sale."  Nelson, 352 U.S. at 110.  But importantly, the Court 
noted that Lawton appeared in a statutory context.  Id.  Finally, the Nelson Court "h[e]ld nothing 
in the Federal Constitution prevents" New York City from "retain[ing] the property or the entire 
proceeds of its sale" if "the record shows adequate steps were taken to notify the owners of the 
charges due and the foreclosure proceedings."  Id. at 110.  Reading Nelson in this context, a 
jurisdiction did not violate the Takings or Due Process clause if it maintained a process to obtain 
surplus value and gave persons adequate notice of the process.  See id.  In essence, a 
jurisdiction's compliance with Mennonite Bd. of  Missions v. Adams, 462 U.S. 791 (1983) -- 
which required foreclosure processes to comply with the Due Process Clause -- prevented courts 
from finding that a jurisdiction violated the Takings or Due Process Clauses when they retained 
surplus.  
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 18 of 40
- 19 - 
 
That understanding seemed to be the prevailing wisdom.  In 1969, a three-judge panel in 
the Northen District of Illinois dismissed a complaint for failing to state a claim, where the 
plaintiffs argued that the Illinois statute allowed purchasers to obtain surplus value, violating the 
Due Process Clause.  See Balthazar v. Mari Ltd., 301 F. Supp. 103, 105-6 (N.D. Ill. 1969).  The 
Supreme Court summarily affirmed that decision.  See Balthazar v. Mari Ltd., 396 U.S. 114 
(1969).  Likewise, in 2007, this Court decided Tupaz v. Clinton Cnty., 499 F. Supp. 2d 182 
(2007).  There, the plaintiffs argued that the County violated their due process and equal 
protection rights "'by depriving them of the right to recoup any surplus obtained over the amount 
of delinquent taxes, interest, and penalties.'"  Tupaz, 499 F. Supp. 2d at 191-92.  The Court 
rejected this argument.  Specifically, the Court cited Nelson and reasoned that "[t]here is no 
legitimate reason not to apply Nelson . . . to the facts of this case."  Id. at 192.  Put differently, the 
same arguments Plaintiffs made here -- although citing a different constitutional provision -- this 
Court rejected nearly 20 years ago. 
The Second Circuit affirmed Tupaz.  The Tupaz plaintiffs appealed the court's decision 
and the Second Circuit decided that appeal.  See Miner, 541 F.3d at 646.  The Miner court, while 
affirming Tupaz, quoted Nelson.  Specifically, the Miner court reasoned that "[N]othing in the 
Federal Constitution prevents [foreclosing on a property and retaining a surplus from a tax 
auction] where the record shows adequate steps were taken to notify owners of the charges due 
and the foreclosure proceedings."  Miner, 541 F.3d at 475 (brackets in original, parentheses 
removed).  Although the Miner court was discussing the Due Process Clause, nothing in that 
case's reasoning indicates that its reasoning did not extend to the Takings Clause.  In fact, this 
Court viewed Miner's reasoning as applying to the Takings Clause.  See Wasiluk, 2022 WL 
3716279, at * 13 (rejecting the plaintiffs' Takings Clause claim, finding that the plaintiffs had no 
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 19 of 40
- 20 - 
 
constitutional interest in surplus value and citing Nelson and Miner to support the proposition).  
Again, Courts treated the Due Process and Takings Clause claims as intermingled.   
True, not all Courts intermingled the Due Process Clause and Takings Clause claims.  See 
Coleman through Bunn v. D.C., 70 F. Supp. 3d 58, 79-80 (D.D.C. 2014) (reasoning that "Lawton 
made clear that a Takings Clause violation will arise when a tax-sale statute grants a former 
owner an independent property interest in the surplus equity and the government fails to return 
that surplus.").  But other Courts relied on Nelson to deny Takings Clause claims.  See id. 
(collecting cases).   
Tyler clarifies the confusion arising from Nelson.  In Tyler the Court clarified that a 
jurisdiction's retention of surplus value, without any process to obtain the surplus, is 
unconstitutional because it violates the Takings Clause.  See Tyler, 598 U.S. at 647.  Put 
differently, the Tyler court removed the Due Process Clause from the analysis.  See id.  If the 
jurisdiction does not have a process to return surplus value, plaintiffs may plausibly allege that 
that the jurisdiction violated the Takings Clause.  See id.  If the jurisdiction has a process, then 
plaintiffs cannot plausibly allege a Takings Clause claim.  See id.  That clarification is important 
because courts in this circuit have previously rejected the argument that Tyler made.  See 
Wasiluk, 2022 WL 3716279, at *13; see also Tupaz,  499 F. Supp. 2d. at 192.  Because there was 
such doctrinal confusion, the Court equitably tolls the Plaintiffs' Takings Clause claim to May 
25, 2023 -- the date the Supreme Court decided Tyler.  
* * * 
 To end, the Court finds that Plaintiffs' claims are not time-barred because they are 
equitably tolled.  New York's Real Property Tax Law did not allow Plaintiffs to obtain surplus 
value pre-Tyler, Tyler changed their ability to obtain surplus value, and Plaintiffs immediately 
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 20 of 40
- 21 - 
 
attempted to obtain the surplus value of their foreclosed homes.  Thus, Plaintiffs should not be 
barred from the opportunity to obtain a remedy.  
 
C. Plaintiffs do not have standing to seek either declaratory or injunctive relief. 
Plaintiffs do not have standing to seek declaratory and injunctive relief as to N.Y . Real 
Property Tax Law §§1136(2)(D) and 1136(3).  To have standing, plaintiffs must show that there 
is an injury in fact, causal connection, and redressability.  Here, Plaintiffs have not shown how 
New York’s foreclosure process -- not Defendants' retention of surplus value -- injured them such 
that Plaintiffs can seek declaratory and injunctive relief.  As a result, the Court finds that 
Plaintiffs do not have standing to seek declaratory and injunctive relief as to §§11362(2)(D),  
1136(3).  
 "'To establish Article III standing, a plaintiff must show (1) an injury in fact, (2) a 
sufficient causal connection between the injury and the conduct complained of, and (3) a 
likelihood that the injury will be redressed by a favorable decision.'"  Dorce v. City of New York, 
2 F.4th 82, 95 (2d Cir. 2021) (quotation omitted).  To satisfy the injury-in-fact requirement, 
plaintiffs must plausibly allege an injury that is "'concrete and particularized' and 'actual or 
imminent;'" it cannot be "'conjectural or hypothetical.'"  Susan B. Anthony List v. Driehaus, 573 
U.S. 149, 158 (2014) (quotation omitted).  Injuries are particularized when they "'affect the 
plaintiff in a personal and individual way,'" and injuries are concrete when they are "real."  
Spokeo, Inc. v. Robins, 578 U.S. 330, 339-40 (2016) (quotation omitted).  When "plaintiffs seek 
injunctive or declaratory relief, they 'cannot rely on past injury to satisfy the injury 
requirement[.]  [They] must show a likelihood that [they] will be injured in the future.'"  Dorce, 2 
F.4th at 95 (citing City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)). 
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 21 of 40
- 22 - 
 
 Working backwards, Plaintiffs' secondary argument posits a speculative harm.  (Pl. 
Response Br., Dkt. 102, at pg. 27).  In their Amended Complaint, Plaintiffs allege that they, and 
those similarly situated, "have been and will be deterred from acquiring property in the future 
because of the unconstitutional risks posed by the retention of foreclosure surplus[.]"  (Amended 
Complaint, Dkt. 75, pg. 29, at ¶159).  Yet Plaintiffs "do not allege any facts to show that they 
own, plan to purchase, or have been deterred from purchasing any additional property," so 
Plaintiffs have not plausibly alleged that they "will be harmed in the future."  Dorce, 2 F.4th at 95 
(affirming the District Court's finding that Plaintiffs do not have standing).  Plaintiffs' 
contentions are far too speculative.  Plaintiffs' allegations rely "on a highly attenuated chain of 
possibilities," which "does not satisfy the requirement that threatened injury must be certainly 
impending."  Clapper v. Amnesty Int'l USA, 568 U.S. 398, 410 (2013) (citations omitted) (finding 
no injury in fact).  At bottom, the Amended Complaint fails to plausibly allege that there is a 
substantial risk of future injury.  Therefore, Plaintiffs do not have standing to seek injunctive 
relief on this score.  See, e.g., Reid v. Metro One Loss Prevention Servs. Grp. (Guard Div. NY), 
Inc., No. 2:23-cv-6303 (NJC) (ARL), 2025 WL 2533377, at *6 (E.D.N.Y . Sept. 3, 2025) (finding 
no standing where the Amended Complaint failed to plausibly allege that the defendant continues 
to injure the plaintiff or that there was a substantial risk that future injury would occur).  
 Plaintiffs' first argument -- that Defendants' retention of surplus value is an ongoing harm 
-- does not change the conclusion.  Plaintiffs request this Court enjoin N.Y . Real Property Tax 
Law §§1136(2)(D) and 1136(3) and declare those statutes unconstitutional.  See (Amended 
Complaint, Dkt. 75, pg. 28-29, at ¶156-159).  However, those statutes establish New York's 
foreclosure process.  N.Y . Real Prop. Tax Law §§ 1136(2)(D), (3).  They have nothing to do with 
Defendants' retention of surplus value.  Compare § 1136 (detailing New York's foreclosure 
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 22 of 40
- 23 - 
 
process) with § 1196 (detailing New York's determination of the existence of surplus value).  Put 
differently, Plaintiffs "are unable to establish a 'real or immediate threat' of [being] injur[ed]" by 
New York's foreclosure process.  Nicosia v. Amazon.com, Inc., 834 F.3d 220, 239 (2d Cir. 2016).    
 
D. Plaintiffs Merckx and Sweeney, who are executors of estates, do not have capacity to 
sue because the persons who were harmed died before the harm occurred. 
 
The Court finds that Plaintiffs Merckx and Sweeney do not have capacity to sue and 
should be dismissed from this action.  Under New York law -- which is applicable here -- an 
estate's personal representative can only bring a claim against a defendant if the decedent could 
have maintained the claim.  In short, the claim must have existed before the decedent died.  Here, 
the legal harm (the retention of surplus value) did not exist before Ronald Merckx and Mary 
Pedano died.  As a result, neither of those plaintiffs has capacity to sue.   
Capacity and Standing are separate doctrines.  "'Standing' is an element of the larger 
question of 'justiciability'" while "'Capacity,' in contrast, concerns a litigant's power to appear and 
bring its grievance before the Court."  Community Bd. 7 v. Schaffer, 84 N.Y .2d 148, 154-55 (N.Y . 
1994) (citations omitted).  "Capacity, or the lack thereof, sometimes depends purely upon a 
litigant's status."  Id. at 155. 
Plaintiffs Merckx and Sweeney do not have capacity to sue.  Capacity to sue for 
individuals in a representative capacity is determined by "the law of the state where the court is 
located[.]"  Fed. R. Civ. P. 17(b)(3).  Under New York law, "'any action, other than an action for 
injury to person or property, may be maintained by and against a personal representative in all 
cases and in such manner as such action might have been maintained by or against his decedent.'" 
Estate of Devins v. Oneida Cnty., No. 6:21-CV-0802 (GTS/ATB), 2022 WL 4549228, at *20 
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 23 of 40
- 24 - 
 
(N.D.N.Y . Sept. 29, 2022) (quoting N.Y . Est. Pow. & Trst. Law §11-3-1) (emphasis added).  Put 
differently, "personal representatives" have "the authority to bring causes of action that were 
viable at the time of" the decedent's death "but not claims that arose after" their "death."  Estate 
of Devins, 2022 WL 4549228, at *21.  Here, Rensselaer County foreclosed on the Merckx's 
property, Ronald Merckx died, and then Rensselaer County sold the property and retained the 
surplus monies.  (Amended Complaint, Dkt. 78, pg. 5, at ¶¶13-17).  Likewise, Mary Pedano died 
on April 22, 2013, the City of Buffalo sold the Pedano Property in October 2019, and then it 
retained the surplus money.  (Id., pg. 9, at ¶¶49-50).  In legal terms, the harm occurred when 
Rensselaer County and the City of Buffalo "received (and began to 'retain') the money from the 
sale of the property[.]"  Sikorsky, 136 F.4th at 62 .  So the harm did not occur until after Ronald 
Merckx's and Mary Pedano's deaths.  Thus, the Takings Clause claim was not viable while either 
Ronald Merckx or Mary Pedano was alive.  And because it was not, neither Plaintiff Merckx nor 
Plaintiff Sweeny has capacity to sue in their capacities as executor.  
Similarly, neither Plaintiff Merckx nor Plaintiff Sweeny has capacity to sue as heirs to the 
estate.  In New York, "individual beneficiaries of the decedent's estate, ha[ve] no independent 
right to maintain an independent cause of action for the recovery of estate property, as such a 
right belong[s] to the personal representative of the decedent's estate."  Stallsworth v. 
Stallsworth, 138 A.D.3d 1102, 1103 (N.Y . App. Div. 2d Dep’t 2016) (citations omitted).  In 
capsule form, heirs have no capacity to sue for estate property.  And here, Plaintiffs Merckx and 
Sweeny are suing for money that purportedly belongs to the Estate -- which is estate property.  
Therefore, neither Plaintiff has capacity to sue in their capacities as heirs.  
Neither analyses extend to Plaintiff Carr because she has capacity to sue as the Carr 
Estate Administrator.  The City of Buffalo sold the Carr property and retained the surplus value 
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 24 of 40
- 25 - 
 
before Carolyn Carr died.  (Amended Complaint, Dkt. 75, pg. 10, at ¶¶56-60).  So the harm 
occurred before she died.  And because it did, Plaintiff Carr can properly bring an action against 
the City of Buffalo. See Schoeps v. Museum of Modern Art, 594 F. Supp. 2d 461, 466 (S.D.N.Y . 
2009) ("[U]nder New York law, a cause of action possessed by the decedent at the time of his or 
her death may be brought subsequently by a representative of the decedent only if the plaintiff 
has been appointed personal representative of the decedent's estate....")  
 
E. Defendants' notice-of-claim defense fails but Plaintiffs' state law claims are 
dismissed. 
 
The Court analyzes Defendants' notice-of-claim defense and Plaintiffs' state 
constitutional claims.  State law claims brought in federal court are subject to state procedural 
rules, while federal claims brough in federal court are not.  Here, Defendants raise a notice-of-
claim defense, which is a state procedural rule, against Plaintiffs' state and federal law claims.  
The Court finds that Plaintiffs' federal law claims survive that defense, but their state law claims 
do not.  
"'State claims brought under state law in federal court are subject to state procedural 
rules.'"  Est. of Devins, 2022 WL 4549228, at *11 (quoting Henneberger v. Cnty.. of Nassau, 465 
F. Supp. 2d 176, 197 (E.D.N.Y . 2006) (citing Felder v. Casey, 487 U.S. 131, 141 (1988)).  New 
York State requires notices of claims when plaintiffs bring an action against a county.  See N.Y . 
Cnty. L. §52; N.Y . Gen. Mun. L. § 50(e)(1)(a); see also Hamilton v. Cnty. of Onondaga, New 
York, No. 15-cv-01333 (BKS/TWD), 2018 WL 4554496, at *16 (N.D.N.Y . Sept. 21, 2018).  
"'Notice of claim requirements are construed strictly by New York state courts.  Failure to 
comply with these requirements ordinarily requires a dismissal for failure to state a cause of 
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 25 of 40
- 26 - 
 
action.'"  Rabadi v. City of Yonkers, No. 21CV1258 (VB), 2022 WL 889734, at *8 (S.D.N.Y . 
Mar. 25, 2022) (quotation omitted). 
 Defendants' notice-of-claim defense does not apply to Plaintiffs' Federal claims.  The 
Supremacy Clause prevents state-notice-of-claims rules from applying to §1983 claims.  See 
Felder, 487 U.S. at 151 ("In a State that demands compliance with" a notice of claim "statute 
before a § 1983 action may be brought or maintained in its courts, the outcome of federal civil 
rights litigation will frequently and predictably depend on whether it is brought in state or federal 
court.  Thus, the very notions of federalism upon which respondents rely dictate that the State's 
outcome-determinative law must give way when a party asserts a federal right in state court.").  
Here, Plaintiffs' vehicle for their Takings Clause and Excessive Fines Clause claims is 42 U.S.C. 
§ 1983.  See (Amended Complaint, Dkt. 75, at pg. 23, 26).  So New York State's notice-of-claim 
rules do not apply to these constitutional claims.  See, e.g., Roland v. City of New York, No. 20-
CV-05392 (TMR), 2024 WL 2832691, at *11 (S.D.N.Y . June 3, 2024) (dismissing only the state 
law claims because the plaintiffs failed to comply with New York State's notice-of-claim 
requirements). 
 Plaintiffs' state law unjust enrichment claims are subject to New York's notice-of-claim 
rules.  Defendants also argue that their notice-of-claim defense bars Plaintiffs' unjust enrichment 
claim.
8  Defendants are correct.  Read plainly, County Law §52 requires notice of claim for 
equitable claims.  N.Y . Cnty. L. §52 ("any  claim . . . for damages arising at law or in equity . . . 
shall be commenced pursuant to . . . [§50-i] of the general municipal law."); N.Y . Gen. Mun. 
§50-i ("No action or special proceeding shall be prosecuted or maintained against a . . .  county 
 
8 See (Rensselaer MTD, Dkt. 121, at pgs. 10-12) (raising the notice-of-claim affirmative 
defense); (Cattaraugus MTD, Dkt. 4-5, at pgs. 4-5) (same); (Buffalo MTD., Dkt. 94-2, at pg. 3) 
(same).  Port Jervis did not raise this argument.  See generally (Port Jervis MTD, Dkt. 95-13).  
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 26 of 40
- 27 - 
 
. . .  unless, (a) a notice of claim shall have been made and served upon the city, county, town, 
village, fire district or school district in compliance with [§50-e] of this article").  Unjust 
enrichment is an equitable claim.  See Cooper Crouse-Hinds, LLC v. City of Syracuse, New York, 
No. 16-CV-1201 (MAD/ATB), 2018 WL 840056, at *10 (N.D.N.Y . Feb. 12, 2018) (applying 
County Law § 52's notice-of-claim requirement to the plaintiff's unjust enrichment claim).  But 
Plaintiffs do not allege that they complied with County Law §52's notice-of-claim requirement.  
See generally (Amended Complaint, Dkt. 75); see also Henneberger v. Cnty. of Nassau, 465 F. 
Supp. 2d 176, 198 (E.D.N.Y . 2006) ("The plaintiffs bear the burden of demonstrating compliance 
with the notice of claim requirement" which requires "a plaintiff [to] plead in the complaint that: 
(1) the notice of claim was served; (2) at least thirty days has elapsed since the notice of claim 
was filed and before the complaint was filed; and (3) in that time the defendant has neglected to 
or refused to adjust or to satisfy the claim.").  As a result, Defendants' notice-of-claim defense 
bars Plaintiffs' unjust enrichment claim. 
 This reasoning extends to Plaintiffs' inverse condemnation, equitable accounting, and 
money had and received claims.  Both inverse condemnation and equitable accounting are 
equitable claims.  See Corsello v. Verizon New York, Inc., 18 N.Y .3d 777, 784 (N.Y . 2012) 
("'Inverse condemnation' . . .  as used by New York courts," is "an equitable remedy"); Leveraged 
Leasing Admin. Corp. v. PacifiCorp Cap., Inc., 87 F.3d 44, 49 (2d Cir. 1996) ("to sustain an 
equitable action for accounting under New York law, a plaintiff must show either a fiduciary or 
confidential relationship with the defendant"); Wood v. Inc. Vill. of Patchogue of New York, 311 
F. Supp. 2d 344, 361 (E.D.N.Y . 2004) ("A cause of action for 'monies had and received' is an 
equitable claim similar in theory to unjust enrichment.").  Because these claims are equitable 
claims, Plaintiffs needed to comply with New York's notice-of-claim process.  See N.Y . Cnty. L. 
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 27 of 40
- 28 - 
 
§52; N.Y . Gen. Mun. §50-i.  But Plaintiffs do not allege that they complied with this process.  
The Court, therefore, holds that Plaintiffs' inverse condemnation, equitable accounting, and 
money had and received claims are barred.  
 Plaintiffs' counter argument on this score is unpersuasive.  Plaintiffs argue that their 
failure to follow the notice-of-claim requirements should be excused because the public interest 
exception applies to their cases.  Not so.  "[T]he public interest exception does not apply when 
plaintiffs are seeking money damages for the sole purpose of redressing plaintiffs' individual 
injuries."  Atkins v. Cnty. of Orange, 251 F. Supp. 2d 1225, 1235 (S.D.N.Y . 2003) (collecting 
cases).  "Here, plaintiffs are solely seeking redress for their individual injuries and while 
plaintiffs' recovery might have an effect on" Defendants' handling of surplus proceedings "such 
an effect would" not "be of any greater value to the public than any other award to civil rights 
plaintiffs."  Id. (citation omitted).  In sum, Plaintiffs' unjust enrichment claims do not fall into the 
public interest exception.  So those claims must be dismissed.  
 Plaintiffs' New York State Constitution claims must also be dismissed.  "[T]he New York 
constitution provides for a private right of action only where remedies are otherwise unavailable 
under common law or section 1983."  Farina v. Metro. Transportation Auth., 409 F. Supp. 3d 
173, 212 (S.D.N.Y . 2019) (citations omitted).  Here, that is not the case. Plaintiffs have a claim 
under the Federal Constitution.  More to the point, "[n]either the [Amended] Complaint nor 
plaintiffs' motion papers suggest any reason why the disposition of an [E]xcessive [F]ines or 
[Takings] claim would be decided differently under the New York Constitution than under the 
U.S. Constitution."  Id. (citation omitted); see also (Amended Complaint, Dkt. 75, pg. 26, at 
¶139) ("The guarantees of Article I, Section 7 of the New York Constitution are generally 
coextensive with the Takings Clause of the United States Constitution."); (Amended Complaint, 
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 28 of 40
- 29 - 
 
Dkt. 75, pg. 28, at ¶ 153) (“New York's Excessive Fines Clause, N.Y . Const. Article I § 5, 
requires the same analysis as the federal clause and provides no greater protection." (internal 
citations omitted)).  In consequence, Plaintiffs' New York State Constitution claims must be 
dismissed.  
 To recap, the Court finds that Plaintiffs' (1) Takings Clause and Excessive Fines Clause 
claims are not beholden to New York State's notice-of-claim requirements, thus those claims 
survive; (2) state law unjust enrichment claims are beholden to New York State's notice-of-claim 
requirements, therefore those claims do not survive; and (3) New York State Takings Clause and 
Excessive Clause claims must be dismissed because there are alternative remedies.  
 
F. Venue is proper in the Northern District of New York.  
The Northern District of New York is the proper venue for this case.  Section 1391 of 
Title 28 of the United States Code generally governs "the venue of all civil actions brought in 
district courts of the United States[.]"  28 U.S.C. § 1391(a)(1).  Under this statute, venue is 
proper in "a judicial district in which any defendant resides, if all defendants are residents of the 
State in which the district is located[.]"  28 U.S.C. 1391(b)(1).  Since Defendant Rensselaer 
County is located in the Northern District of New York; this District is the proper venue for this 
case. 
 
G. The Court rejects Defendants' Rule 19 argument because Defendants did not 
comply with Rule 19(c), which requires Defendants to state why they did not add the 
allegedly indispensable parties. 
The Court rejects Defendants' Rule 19 argument.  In short, Rules 19(a) and 19(b) require 
the joinder of necessary and indispensable parties.  Rule 19(c) requires parties complaining about 
their adversary's failure to comply with Rules 19(a) and 19(b) to identify the absent parties and 
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 29 of 40
- 30 - 
 
explain why the complaining party did not join the absent parties.  Here, Defendants complain 
about Plaintiffs' failure to comply with Rules 19(a) and 19(b), yet Defendants do not identify 
why they did not join the necessary and indispensable parties.  As a result, the Court rejects 
Defendants' Rule 19 argument.  
"Fed. R. Civ. P. 19 sets forth a two-step test for determining whether the court must 
dismiss an action for failure to join an indispensable party."  Viacom Int'l, Inc. v. Kearney, 212 
F.3d 721, 724 (2d Cir. 2000) (Sotomayor, J.).  At step one, courts "must determine whether an 
absent party belongs in the suit, i.e., whether the party qualifies as a necessary party under Rule 
19(a)."  Id. (citation omitted).  "[I]f the court makes a threshold determination that a party is 
necessary under Rule 19(a), and . . . joinder of the absent party is not feasible for jurisdictional . . 
. reasons, the court must" move to step two, where it "determine[s] whether the party is 
'indispensable' under Rule 19(b)."  Vision en Analisis y Estrategia, S.A. v. Andersen, 662 F. App'x 
29, 31–32 (2d Cir. 2016) (summary order) (quotation omitted)). 
As to the first prong, an absent party is necessary if (1) "in that [party's] absence, the 
court cannot accord complete relief among existing parties; or" (2) the absent party "claims an 
interest relating to the subject of the action and is so situated that disposing of the action in the 
person's absence may (i) as a practical matter impair or impede the person's ability to protect the 
interest; or (ii) leave an existing party subject to a substantial risk of incurring double, multiple, 
or otherwise inconsistent obligations because of the interest."  Fed. R. Civ. P. 19(1)(A), (1)(B)(i)-
(ii).   
As to the second prong, courts consider the Rule 19(b) factors to determine if an absent 
party is indispensable.  Specifically, courts consider: "the extent to which a judgment rendered in 
the person's absence might prejudice that person or the existing parties; the extent to which any 
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 30 of 40
- 31 - 
 
prejudice could be lessened or avoided by protective provisions in the judgment, shaping the 
relief, or other measures; whether a judgment rendered in the person's absence would be 
adequate; and whether the plaintiff would have an adequate remedy if the action were dismissed 
for nonjoinder."  Fed. R. Civ. P. 19(b)(1)-(b)(4) (formatting altered).  
The Court rejects Defendants' Rule 19 claim because Defendants failed to comply with 
Rule 19(c).  "A party that complains of failure of the adversary to join an indispensable party is 
required by Rule 19[(c)] to explain why the objecting party did not itself bring the indispensable 
party into the litigation."  Tae H. Kim v. Ji Sung Yoo, 776 F. App'x 16, 20 (2d Cir. 2019) 
(summary order) (citing Fed. R. Civ. P. 19(c)).  Here, Defendants identified the absent parties – 
lienholders -- they believe are necessary to this litigation.
9  But Defendants, the complaining 
parties, have failed to identify why they did not join these absent parties in the litigation.  See Tae 
H. Kim, 776 F. App'x at 20 (affirming the District Court's rejection of Defendant's "unpersuasive" 
Rule 19 claim).  Worse yet, "[D]efendants do not offer any arguments" in their original motion or 
global reply "as to how or why" they are "unable to . . . join[]" the lienholders "to Plaintiff[s'] 
case."  Gondeck v. JPMorgan Chase Bank, N.A., 705 F. Supp. 3d 64, 71 (N.D.N.Y . 2023) 
(cleaned up) (rejecting Defendants' Rule 19 argument).  Defendants cannot cry foul at Plaintiffs' 
failure to comply with Rule 19 and then fail to comply with Rule 19.  In consequence, the Court 
rejects Defendants' Rule 19 argument.  
* * * 
The Court also rejects the argument that New York State is a necessary party because 
"New York State is no more a necessary party to this suit than Minnesota was there."  Cavaluzzi, 
 
9 (Rensselaer MTD, Dkt. 121, at pgs. 20-24); (Cattaraugus MTD, Dkt. 93-3, at pg. 9); (Port 
Jervis MTD, Dkt. 95-13, at pg. 16-19).  
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 31 of 40
- 32 - 
 
2025 WL 1347142, at *9 (rejecting Defendants' argument that New York State is a necessary 
party and explaining why New York State is not a required party). 
* * * 
 In sum, the Court rejects Defendants' Rule 19 argument because Defendants failed to 
comply with Rule 19 and New York State is not a necessary party. 
 
H. This case does not raise a political question.  
 The Court rejects Defendants' political question doctrine defense.  To determine whether 
a case presents a political question, courts examine six factors.  Applying those factors here, the 
Court finds that this a run-of-the-mill property case that does not present a political question.  
Therefore, the Court rejects Defendants' political question defense. 
"The political question doctrine excludes from judicial review those controversies which 
revolve around policy choices and value determinations constitutionally committed for resolution 
to the halls of Congress or the confines of the Executive Branch."  Japan Whaling Ass'n v. Am. 
Cetacean Soc., 478 U.S. 221, 230 (1986).  To determine if the political question doctrine applies 
to cases, courts look to six factors.  See, e.g., Vieth v. Jubelirer, 541 U.S. 267, 277 (2004) (per 
curiam).  These six factors are whether: 
1. a textually demonstrable constitutional commitment of the 
issue to a coordinate political department; or 
2. a lack of judicially discoverable and manageable standards for 
resolving it; or 
3. the impossibility of deciding without an initial policy 
determination of a kind clearly for nonjudicial discretion; or 
4. the impossibility of a court's undertaking independent 
resolution without expressing lack of the respect due 
coordinate branches of government; or 
5. an unusual need for unquestioning adherence to a political 
decision already made; or 
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 32 of 40
- 33 - 
 
6. the potentiality of embarrassment from multifarious 
pronouncements by various departments on one question. 
Baker v. Carr, 369 U.S. 186, 217 (1962).  "These tests are probably listed in descending order of 
both importance and certainty."  Vieth, 541 U.S. at 277.  "Unless one of these formulations is 
inextricable from the case at bar, there should be no dismissal for non-justiciability on the 
ground of a political question’s presence."  Baker, 369 U.S. at 217 (emphasis added). 
 Examining the Baker factors, the Court holds that this case does not present a political 
question.  
First, there is no textual commitment of this issue to the political branches.  The Supreme 
Court has long adjudicated surplus value cases.  See, e.g., Lawton, 110 U.S. at 149-50 
(invalidating a federal law, in 1884, that permitted the federal government's retention of surplus 
money obtained from property it foreclosed on); Tyler, 598 U.S. at 646 (invalidating a Minnesota 
law, in 2023, that permitted a county's retention of surplus money obtained from property it 
foreclosed on) 
Second, there is no lack of judicially discoverable and manageable standards for 
resolving the issue.  Indeed, courts have addressed this issue as it has arisen.  See, e.g., Sikorsky, 
136 F. 4th at 60-61 (finding that the plaintiff stated a claim under the Takings Clause); Cavaluzzi 
v. County of Sullivan, No. 23 Civ. 67 (PAE), 2024 WL 1347142, *8-10 (S.D.N.Y. Dec. 27, 2024) 
(same).   
Addressing factors three and four, the Court neither needs to make any policy 
considerations to adjudicate this issue nor disrespect the political branches.  "'No policy 
underlying the political question doctrine suggests that'" legislatures or executives "'can decide 
the constitutionality of a statute; that is a decision for the courts.'"  Zivotofsky ex rel. Zivotofsky v. 
Clinton, 566 U.S. 189, 196–97 (2012) (quotation omitted).  True, there may be policy 
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 33 of 40
- 34 - 
 
considerations courts must address when addressing this issue, or any issue.  But the "resolution 
of litigation challenging" an unconstitutional practice "cannot be evaded by courts because the 
issues have political implications[.]"  INS v. Chadha, 462 U.S. 919, 943 (1983).  In fact "[i]t is 
emphatically the province and duty of the judicial department to say what the law is."  Marbury 
v. Madison, 1 Cranch 137, 177 (1803). 
Fifth, there is no need for unquestioned adherence to a political decision already made.  
"There is nothing in the text of Article 11 that suggests that the New York legislature, 
improbably, believed its tax foreclosure scheme implicated political questions excluded from 
judicial review."  Cavaluzzi v. Cty. of Sullivan, No. 23 Civ. 11067 (PAE), 2025 WL 1347142, at 
*6 (S.D.N.Y . May 8, 2025) (rejecting Defendants' political question and explaining why 
Defendants' political question doctrine defense is inapplicable).  
Sixth, there is no potential for embarrassment.  This is a routine property dispute that 
courts have long dealt with.  The Court will not dismiss the case for an argument that is 
bordering on frivolous.
10 
 To end, the Court applies the Baker factors and finds that none of them weigh in favor of 
finding that this case presents a political question.  The Court, therefore, rejects this claim. 
 
I. The doctrines of Res Judicata and Collateral Estoppel do not bar Plaintiffs' Takings 
claim. 
 
Res Judicata, or claim preclusion, "bars relitigation if '(1) the previous action involved an 
adjudication on the merits; (2) the previous action involved the [same parties] or those in privity 
 
10 Understanding that the political question doctrine defense is frivolous, the parties do not 
properly brief the issue.  See, e.g., (Dkt. 136-3, at pg. 8) (failing to apply the Baker factors).  
 
 
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 34 of 40
- 35 - 
 
with them; [and] (3) the claims asserted in the subsequent action were, or could have been, raised 
in the prior action.'"  Sikorsky, 136 F.4th at 62 (quotation omitted).  "New York courts, like 
federal courts, require a claim to be ripe for it to be justiciable, thereby avoiding 'mere 
hypothetical adjudications.'"  Id. (quotation and other citations omitted).  Here, the state court 
actions all ended in adjudications on the merits and those cases involved the same parties.  So the 
only question is whether the claims were ripe.  They were not.  As previously noted, "the 'harm' 
at issue is the" Defendants' "retention of surplus equity."  Id. (emphasis in original).  So the harm 
Plaintiffs alleged occurred after the New York State Supreme Court's Judgment transferring title.  
Because the harm occurred after the Judgment, the claim was not ripe at the time of the 
judgment.  See id. at 59, 62-63 (finding Sikorsky's Takings Clause claim not ripe where he 
initially brought a claim in 2017, brought a second claim in March 2021, but Defendants sold his 
property in June 2021).  Because the claims were not ripe at the time of the Judgment, Plaintiffs, 
like Sikorsky, could not have asserted their claims in the prior action, and because they could 
not, claim preclusion does not bar Plaintiffs' Takings Clause claim. 
"Collateral estoppel, or issue preclusion, 'bars a party from relitigating in a subsequent 
proceeding an issue clearly raised in a prior proceeding and decided against that party where the 
party to be precluded had a full and fair opportunity to contest the prior determination.'"  Johnson 
v. Watkins, 101 F.3d 792, 794 (2d Cir. 1996) (quotation omitted).  The party claiming issue 
preclusion must show two elements: "(1) 'there must be an identity of issue which has necessarily 
been decided in the prior action and is decisive of the present action' and (2) 'there must have 
been a full and fair opportunity to contest the decision now said to be controlling.'"  Id. 
(quotation omitted).  As already established, there was no full opportunity to litigate this issue at 
the foreclosure hearing because the issue was not ripe.  See Sikorsky, 136 F.4th at 62-63.  So 
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 35 of 40
- 36 - 
 
Defendants cannot plausibly argue that there has been a full and fair opportunity to address the 
surplus value issue.  In consequence, issue preclusion does not bar Plaintiffs' Takings Clause 
claim. 
 
J. Rooker-Feldman does not apply because Plaintiffs are neither state-court losers 
complaining of injuries caused by state-court judgments nor are they inviting this 
Court to review and reject the state-court judgments. 
 The Court rejects Defendants' Rooker-Feldman doctrine defense.  Rooker-Feldman bars a 
narrow set of cases if, and only if, the party arguing the Doctrine can establish four elements. 
Here, Defendants cannot establish three of the four elements.  So the Court declines to abstain 
under Rooker-Feldman.  
The Rooker-Feldman doctrine precludes "lower federal courts . . . from exercising 
appellate jurisdiction over final state-court judgments."  Lance v. Dennis, 546 U.S. 459, 463 
(2006) (per curiam).  Rooker-Feldman bars an action only if "(1) the federal-court plaintiff lost 
in state court; (2) the plaintiff complains of injuries caused by a state court judgment; (3) the 
plaintiff invites review and rejection of that judgment; and (4) the state judgment was rendered 
before the district court proceedings commenced."  Hunter v. McMahon, 75 F.4th 62, 68 (2d Cir. 
2023) (quotation omitted).  Rooker-Feldman is narrow.  The doctrine only applies to "'state-court 
losers complaining of injuries caused by state-court judgments rendered before the district court 
proceedings commenced and inviting district court review and rejection of those judgments.'"  Id. 
(quotation omitted).  "'Rooker-Feldman is not simply preclusion by another name' but 'applies 
only in limited circumstances where a party in effect seeks to take an appeal of an unfavorable 
state-court decision to a lower federal court.'"  Id. (quotation omitted). 
The Court can easily dispense with Defendants' Rooker-Feldman argument because 
Defendants lose on the first three elements. 
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 36 of 40
- 37 - 
 
First, Plaintiffs are not state-court losers.  Defendants cite Hason v. Office of Professional 
Medical Conduct, 314 F. Supp. 2d 241 (S.D.N.Y. 2004), for the proposition that, "'[i]f the 
precise claims raised in a state court proceeding are raised in the subsequent federal proceeding, 
Rooker–Feldman plainly will bar the action.'"  Id. at 247 (quotation omitted).  But Defendants 
needed to read the next sentence.  "[I]f an issue was 'never presented in the state court 
proceedings and the plaintiff did not have an opportunity to present [it] in those proceedings, [it 
is] not 'inextricably intertwined' and therefore not barred by Rooker-Feldman.'"  Id. (quotation 
omitted).  Here, Plaintiffs never raised their surplus-value Takings Clause claim.  They could 
not.  The issue was not ripe.  Sikorsky, 136 F.4th at 62-63.  As a result, Plaintiffs were not state-
court losers.   
Second, Plaintiffs are not complaining of injuries caused by a state-court judgment.  They 
are complaining about injuries caused by the municipality when the jurisdiction retained their 
surplus money.  See Sikorsky, 136 F.4th at 62.  True, the municipality's retention of the surplus 
money is a logical outgrowth traceable to the state-court judgment.  But that argument fails for 
two reasons.  First, the state-court judgment itself does not create the jurisdiction's retention of 
surplus money.  The state-court judgment only begins the process, which goes as follows: state 
court judgment  transfer of property to municipality  jurisdiction's sale of property to a third 
party for surplus money  jurisdiction's retention of surplus money.  Put differently, Defendants' 
argument is too attenuated.  See, e.g., Dorce, 608 F. Supp. 3d at 134 (S.D.N.Y. 2022) ("The 
second Rooker-Feldman requirement is not met, because the City Defendants' failure to return 
the plaintiffs' surplus equity, or else to compensate the plaintiffs therefor, was not caused by the 
state court foreclosure judgment, 'but by the City's decision to include the properties in the TPT 
Program and transfer them to a third party, and by the TPT Program's allegedly inadequate 
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 37 of 40
- 38 - 
 
mechanism for seeking compensation for the excess value of the property following 
foreclosure.'"  Id. (citation omitted).  The second issue with that argument is that surplus money 
is not the guaranteed outcome of the state-court judgment.  Altogether, Plaintiffs are not 
complaining of injuries caused by a state-court judgment, they are complaining of injuries caused 
by the jurisdictions.  Thus, Rooker-Feldman's second element is not met. 
Third, Plaintiffs are not asking this Court to review the state-court judgment.  Plaintiffs 
do not challenge the transfer of their property.  See generally, (Amended Complaint, Dkt. 75).  
What they are challenging is the jurisdiction's retention of surplus money.  The state court 
judgment did not address this claim.  See Dorce, 608 F. Supp. 3d at 134 (S.D.N.Y. 2022) 
(finding the third Rooker-Feldman element unmet because "[t]he state court judgment did not 
address whether the plaintiffs were compensated for their surplus equity or whether the City's 
seizure and retention of such equity would be unlawful." (citation omitted)).  In short, Rooker-
Feldman’s third element is not met.   
 To end, the Court finds that Defendants are unable to show that Plaintiffs' Amended 
Complaint fits the first three elements of Rooker-Feldman.  Because Defendants cannot establish 
all four elements of the doctrine, this Court has not been stripped of jurisdiction under Rooker-
Feldman.  See Sung Cho v. City of New York, 910 F.3d 639, 646 (2d Cir. 2018) (noting that "all 
four requirements must be met in order for Rooker-Feldman to act as a jurisdictional bar").  To 
put a finer point on it, this Court rejects Defendants' Rooker-Feldman argument. 
 
IV. CONCLUSION 
For ease, the Court recaps its decision.  First, the Court holds that Plaintiffs have 
plausibly alleged a Takings Clause violation.  Second, the Court equitably tolls the statute of 
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 38 of 40
- 39 - 
 
limitations to May 25, 2023, the day the Supreme Court decided Tyler.  Third, the Court holds 
that Plaintiffs do not have standing to seek declaratory and injunctive relief.  Fourth, the Court 
holds that Plaintiffs Merckx and Sweeney do not have capacity to sue.  Fifth, the Court rejects 
Defendants' notice-of-claim defense only as to Plaintiffs' federal law claims.  Sixth, the Court 
dismisses Plaintiffs' state law and state constitutional claims.  Seventh, the Court holds that the 
Northern District of New York is the proper venue for this action.  Eighth, the Court holds that 
the case does not need to be dismissed, under Fed. R. Civ. P. 12(b)(7), for failure to join 
necessary parties under Rule 19.  Ninth, the Court holds that this case does not present a political 
question.  Tenth, the Court holds that neither claim preclusion nor issue preclusion bars Plaintiffs' 
Takings Clause claim; and Eleventh, the Court holds that Rooker-Feldman does not strip this 
Court of jurisdiction.   
Accordingly, the Court hereby 
ORDERS that Defendants' motions to dismiss, see Dkt. Nos. 93, 94, 95 and 121 are 
GRANTED in part and DENIED in part for the above-stated reasons.  In sum, Plaintiffs 
Merckx and Sweeney are terminated from this action because they lack the capacity to sue; as for 
the other Plaintiffs, the only claims that remain in this action are as follows: Plaintiff Laraway's 
Takings Clause claim against Defendant Rensselaer County; Plaintiff Snashell's Takings Clause 
claim against Defendant Cattaraugus County; Plaintiffs Dotty Carr's and Arthur McDowell's 
Takings Clause claims against Defendant City of Buffalo; and Plaintiffs Chignard and Martine 
Noelizaire's Takings Clause claims against the Defendant City of Port Jervis; the statute of 
limitations for all such claims is equitably tolled until May 25, 2023; and the Court further 
ORDERS that the Clerk of the Court shall unconsolidate the cases listed in Dkt. 126; and 
the Court further 
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 39 of 40
- 40 - 
 
ORDERS that this matter is referred to Magistrate Judge Katz for all further pretrial 
matters. 
IT IS SO ORDERED. 
 
Dated: March 19, 2026 
 Syracuse, New York  
Case 1:23-cv-01354-FJS-MJK     Document 208     Filed 03/19/26     Page 40 of 40

Passage view · GavelSight